AND  IMPORTERS      . 
SAN    FRANCISCO.    Cfc 


T 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


LAW 


OF 


MANDAMUS 


BY 

S.  S.  MERRILL 

Of  the  St.  Louis  Bak. 


CHICAGO : 

T.  H.  FLOOD  AND  COMPANY. 

1892. 


Copyright,  1892, 

BY 

S.  S.   MERRILL. 


STATE  JOURNAL  PRINTING  COMPANY, 

Printers  and  Stereotypers, 

MADISON,  wis. 


DEDICATION. 


THIS  BOOK  IS   DEDICATED   TO  THE  MEMORY  OF  MY   BROTHER, 

WILLIAM  E.  MERRILL, 

DATE  LIEUTENANT-COLONEL,  CORPS  OP  ENGINEERS,  UNITED  STATES  ARMY, 

WHO    ORIGINATED  AND   CONSTRUCTED  THE    MOVABLE    DAM  ACROSS 

THE    OHIO    RIVER    NEAR    PITTSBURGH,    PA.,   AND    WHO   FOR 

THE    LAST  TWENTY  YEARS  WAS  IN  CHARGE  OF  THE 

GOVERNMENTAL  WORK  ON  THE  OHIO  RIVER. 


687423 


PREFACE. 


The  law  of  mandamus  has  gradually  grown  up  under 
the  guidance  of  judicial  discretion,  which  has  produced 
such  varying  decisions  from  the  numerous  courts  of  last 
resort,  that  it  is  expedient  from  time  to  time  to  collect 
the  law  on  this  subject,  both  to  assist  the  practicing  attor- 
ney relative  to  the  application  of  the  writ  in  new  questions 
presenting  themselves  from  time  to  time,  and  to  aid  the 
courts  in  harmonizing  their  views  of  judicial  discretion. 

In  preparing  this  volume  the  author  has  himself  care- 
fully examined  every  decision  therein  cited,  and  his  read- 
ers may  safely  rely  on  the  correctness  of  such  citations. 
Of  course  it  is  admitted  that  the  exercise  of  the  greatest 
care  does  not  render  an  error  an  impossibility. 

This  work  is  now  committed  to  his  professional  breth- 
ren in  the  hope  that  Job's  wish,  that  his  enemy  would 
write   a   book,   is    not    advice   which   should    have  been 

heeded  by  its  author. 

S.  S.  MERRILL. 
St.  Louis, 
May,  1892. 


TABLE  OF  CONTENTS. 


CHAPTER  1. 
DEFINITION  AND  HISTORY  OF  THE  WRIT  OF  MANDAMUS. 

Section. 

Definition  of  the  writ  of  mandamus 1 

Origin  of  the  writ  ..........  2 

The  writ  is  a  common-law  writ .  3 

Formerly  no  traverse  was  allowed  . 4 

When  a  traverse  was  allowed  to  the  return     .....  5 

English  common  law  as  adopted  in  America  .....  6 

Statute  of  Anne  adopted          ........  7 

Extension  of  the  writ  in  England  .......  8 

Uncertainty  as  to  the  limits  of  its  use 9 

CHAPTER  2. 


NECESSITY  THE  ORIGIN  OF  THE  WRIT. 

No  other  remedy 10 

Remedy  required  where  there  is  a  right 11 

Increasing  the  uses  of  the  writ 12 

CHAPTER  3. 


SCOPE  OF  THE  WRIT  OF  MANDAMUS. 

The  duties  enforced  by  mandamus  .... 

To  compel  production  and  inspection  of  public  documents 
Mandamus  as  to  property  devoted  to  public  use 
Mandamus  not  lie  to  enforce  private  contracts 
Writ  not  lie  to  compel  payment  of  debts 
Exceptions  as  to  collecting  debts  hy  this  writ 
Exceptions  continued      .         .         .         .         • 
Change  of  law  as  affecting  mandamus   . 

CHAPTER  4. 


13 

14 
15 
16 
17 
18 
19 
20 


HOW  FAR  THE  WRIT  IS  CONFINED  TO  PUBLIC  RIGHTS  AND  AGAINST  PUB- 
LIC  OFFICERS. 


Is  the  writ  confined  to  public  rights  in  England? 
American  rule        ...... 


21 
22 


VI 


TABLE    OF    CONTENTS. 


The  writ  will  not  l'un  against  a  private  person  or 

officially 

Subject  continued 

Mandamus  to  parties  assuming  public  duties 
When  is  property  devoted  to  public  uses? 
Mandamus  lies  to  those  holding  public  franchises 
Mandamus  runs  to  railroad  corporations 
The  writ  runs  against  any  corporation    .         . 


Section. 
one  not  acting 


23 
24 
25 
26 

27 

27a 

28 


CHAPTER  5. 

GENERAL  PRINCIPLES  GOVERNING  THE  ISSUE  OF  THE  WRIT  OF  MANDAMUS. 


General  nature  of  acts  to  which  the  writ  applies     . 

Ministerial  acts 

Distinction  between  ministerial  and  judicial  acts  illustrated  . 
Mandamus  to  take  action  in  judicial  or  discretionary  matters 
Mandamus  not  lie  when  performance  is  discretionary     . 
Permissive  statutes  may  be  mandatory    ..... 

Though  the  act  calls  for  discretion,  no  excuse  for  non-action  . 
Mandamus  to  take  jurisdiction  when  wrongfully  declined 
Mandamus  not  lie  when  officer  has  acted  in  a  discretionary  matte 
Exceptions  as  to  interfering  with  acts  involving  discretion 
Illustrations  of  such  interference    ...... 

Mandamus  when  fraud  or  prejudice  has  influenced  action 
The  abuse  of  discretion  must  be  flagrant        .... 

The  writ  of  mandamus  will  not  lie  to  undo  what  has  been  done 
Mandamus  and  injunction  contrasted     ..... 

Are  preliminary  questions  judicial  or  ministerial?  . 

English  rule  as  to  preliminary  questions        .... 

American  rule  as  to  preliminary  questions      .... 

Subject  continued 

Summary  of  decisions  on  the  subject      ..... 

Mandamus  protects  only  substantial  interests 

The  writ  creates  no  new  duty        .'.... 

Writ  denied  when  there  are  other  remedies     .... 

Other  remedy  must  be  speedy         ...... 

Other  remedy  must  be  adequate      ...... 

Other  remedy  must  be  specific 

Other  remedy  must  be  a  legal  remedy 

Relator  must  show  a  clear  legal  right 

Obligation  on  respondent  to  do  the  act  must  be  absolute 
Mandamus  not  lie,  if  act  only  to  be  done  on  approval  of  another 
There  must  be  an  officer  to  do  the  act  desired 

Corollaries  from  preceding  sections 

Mandamus  is  entirely  a  civil  remedy 


29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 
51 
52 
53 
54 
55 
56 
57 
58 
59 
60 
61 


TABLE    OF   CONTENTS.  VLL 

CHAPTER  6. 
DISCRETION  OF  COURT  IN  ISSUING  THE  WRIT. 

Section, 

Nature  of  the  discretion  of  the  court 62 

Illustrations  of  exercise  of  discretion 63 

Limitations  as  to  the  use  of  the  writ  from  its  nature      ...  64 

Subject  continued 65 

The  court  will  try  to  make  the  writ  the  means  of  obtaining  sub- 
stantial justice 66 

The  writ  will  be  granted  only  in  cases  of  necessity  ...  67 

Relator  must  show  good  motives  and  correct  actions       ...  68 
Maridamus  will  be  refused  to  direct  an  officer's  general  course  of 

conduct 69 

Writ  refused  when  delay  in  acting  not  unreasonable       ...  70 

"Writ  will  be  refused  when  it  will  work  injustice     ....  71 

Writ  will  be  refused  when  justice  will  not  be  subserved  thereby     .  72 

Writ  will  be  refused  when  it  will  operate  harshly  ....  73 

The  writ  will  not  be  issued  unless  it  can  effect  substantial  justice  .  74 

The  writ  will  not  issue  when  it  will  be  unavailing  ....  75 

Subject  continued 76 

If  the  relator's  rights  expire  before  the  hearing,  the  writ  will  be  re- 
fused          77 

Writ  will  be  denied  if  respondent  has  gone  out  of  office  or  the  act 

ceases  to  be  his  duty 78 

Mandamus  to  compel  an  action  after  the  time  limited  for  its  per- 
formance    79 

Instances  of  issuing  the  writ  after  the  time  to  perform  the  act  had 

expired     ......•••••  80 

The  court  will  protect  the  respondent's  rights         ....  81 

Parties  will  not  be  harassed  by  suits 82 

Discretion  used  in  protecting  the  rights  of  third  parties  ...  83 
The  writ  will  not  issue  when  another  tribunal  can  require  the  act 

to  be  done 84 

The  last  rule  not  strictly  observed 85 

A  mandamus  not  issued  to  command  A.  to  command  B.        .        .  86 

Laches  will  bar  relief  by  mandamus 87 

Discretion  of  court  when  the  state  is  relator  .        .        .        .        •  88 

CHAPTER  7. 
MANDAMUS  AGAINST  THE  STATE. 

Cannot  obtain  a  mandamus  indirectly  by  obtaining  one  against  an 

officer       ...........  89 

When  the  writ  goes  against  the  officers  to  enforce  a  liability  of  the 

state 90 


VU1  TABLE   OF   CONTENTS. 

CHAPTER  8. 

MANDAMUS  TO  THE  EXECUTIVE  OFFICERS  OF  THE  GOVERNMENT. 

Section 

The  three  co-ordinate  independent  branches  of  the  government      .  91 

Mandamus  to  the  president  of  the  United  States     ....  92 

Mandamus  to  the  governor  of  a  state      ......  93 

Mandamus  refused  against  the  governor  of  a  state          ...  94 
A  case  wherein  decided  that  the  writ  would  not  issue  against  a  gov- 
ernor       ...........  95 

Case  where  it  was  decided  that  a  governor  is  amenable  to  this  writ  96 

Deductions  from  the  decisions 97 

Mandamus  to  the  governor  of  a  state  from  a  federal  court    .        .  98 

Mandamus  to  other  executive  officers     .         .         .         ...  99 

Mandamus  to  heads  of  federal  executive  departments     .        .        .  100 

Cases  of  mandamus  to  heads  of  federal  executive  departments       .  101 

Mandamus  to  the  secretaries  of  state  of  the  various  states      .        .  102 

Mandamus  to  a  state  treasurer 103 

Mandamus  to  the  comptroller  of  a  state          .        .        •        •        .  104 

Mandamus  to  the  auditor  of  a  state        ......  105 

Mandamus  to  commissioner  of  state  land  office      ....  106 

CHAPTER  9. 

MANDAMUS  TO  THE  LEGISLATIVE  DEPARTMENT. 

> 

CHAPTER  10. 

MANDAMUS  TO  PUBLIC  OFFICERS  AND  PUBLIC  CORPORATIONS. 

A  mandamus  lies  to  all  public  officers  and  public  corporations  to 

perform  any  ministerial  duty            ......  108 

When  suits  do  not  accomplish  the  act  desired,  a  mandamus  lies  — 

Illustrations      ..........  109 

Mandamus  not  issue  when  officers  have  a  discretion  as  to  the  man- 
ner or  matter  of  doing  the  act 110 

Mandamus  to  the  governing  board  of  a  county       ....  Ill 

Acts  of  county  authorities,  involving  judgment  and  discretion      .  112 

Mandamus  to  city  councils 113 

Mandamus  to  officers  of  taxes 114 

Mandamus  relative  to  public  schools       ......  115 

Mandamus  to  enforce  duties  relative  to  the  public  roads         .         .  116 

Mandamus  relative  to  letting  public  contracts        ....  117 

Mandamus  relative  to  the  approval  of  bonds  of  officers  .        .         .  118 

Mandamus  about  issuing  licenses 119 

Mandamus  to  police  officials 120 

Mandamus  to  clerk  of  the  county  board          .....  121 

Mandamus  to  the  clerk  of  a  court           ..*•..  122 

Mandamus  to  a  sheriff 123 


TABLE   OF   CONTENTS.  IX 

Section. 

Mandamus  to  a  register  of  deeds 124 

Mandamus  to  keep  public  offices  in  the  proper  places    .        .        .  125 

Mandamus  to  auditing  officers 126 

Mandamus  to  assessors  of  taxes      .......  127 

Mandamus  relative  to  subscriptions  by  municipal  corporations  to 

railroads,  etc. 128 

Mandamus  to  levy  a  tax  to  pay  debts,  when  authority  to  make  a 

levy  is  granted  or  is  implied 129 

Claims  must  be  legally  established  before  a  mandamus  will  issue  to 

compel  the  levy  of  a  tax  for  their  payment      ....  130 

In  a  mandamus  on  a  judgment,  is  the  latter  conclusive?  .  .  131 
In  a  mandamus  to  levy  a  tax  to  pay  a  demand,  public  necessities 

must  be  first  considered 132 

Mandamus  to  collectors  of  revenue 133 

Mandamus  to  obtain  possession  of  public  funds      ....  134 

Mandamus  to  disbursing  officers     .                  .         .         .         .         .  135 

Mandamus  concerning  the  payment  of  salaries      ....  136 

CHAPTER  11. 

THE  USE  OP  MANDAMUS,  WHEN  THE    RIGHT  TO  A    PUBLIC  OFFICE  OR  TO 

MEMBERSHIP,  OR  TO  AN  OFFICE,  IN  A  PUBLIC  CORPORATION,  IS  CON- 
CERNED. 

Right  to  disfranchise  a  member  of  a  public  corporation          .        .  137 
Mandamus  to  order  elections  .         .         .         .         .         .         .         .138 

Mandamus  to  count  the  votes  cast  at  an  election    ....  139 

Mandamus  to  canvassing  boards  to  issue  a  certificate  of  election    .  140 

Mandamus  to  swear  an  officer  elect  into  office        ....  141 

Mandamus  in  favor  of  one  holding  the  certificate  of  election  .  142 
Mandamus  to  put  into  office  not  granted,  when  there  is  a  de  facto 

incumbent        ..........  143 

Whether  mandamus  lies  to  put  one  into  office  pending  a  contest  .  144 
Mandamus  to  compel  an  officer  elect  to  assume  the  duties  of  the 

office 145 

Mandamus  is  allowed  in  some  states  to  try  the  title  to  an  office  .  146 
When  a  public  officer  may  be  removed  from  an  office  .  .  .147 
Mandamus  lies  to  restore  an  officer  wrongfully  removed  from 

office 148 

Mandamus  will  not  lie  to  seat  an  officer  who  may  be  removed  at 

once 149 

Mandamus  when  an  officer  not  removed  but  another  party  intrudes 

himself 150 

Mandamus  when  removal  from  office  is  discretionary  .  .  .  151 
Party  having  the  prima  facie  title  to  an  office  can  enforce  his  rights 

as  such  officer  by  the  writ  of  mandamus 152 

Subject  continued 153 


X  TABLE   OF   CONTENTS. 

Section, 
Mandamus  for  books  and  paraphernalia  of  office  by  party  with  the 

prima  facie  title       .        .        .        .        .        .        .        .        .154 

Subject  continued 155 

Mandamus  not  lie  to  private  individual  to  surrender  office  books, 

etc  .        . 156 

CHAPTER  12. 

MANDAMUS  TO  PRIVATE  CORPORATIONS. 

Mandamus  runs  to  private  corporations  because  they  are  the  crea- 
tion of  the  state 157 

What  duties  of  a  private  corporation  are  enforceable  by  manda- 
mus   158 

Illustrations  of  the  issue  of  the  writ  of  mandamus  to  private  corpo- 
rations       159 

Mandamus  to  compel  the  transfer  of  its  stock  by  a  private  corpo- 
ration      .         .         .         .       • 160 

Mandamus  to  obtain  the  inspection  of  the  books  of  a  private  cor- 
poration    161 

Mandamus  lies  to  common  carriers  to  prevent  discrimination         .     162 

Mandamus  will  not  he  to  a  private  corporation  when  there  is  an- 
other remedy 163 

Mandamus  will  not  go  against  a  private  corporation  when  it  is 

financially  unable  to  do  the  act  desired 164 

Mandamus  to  compel  officers  of  private  corporations  to  discharge 

their  duties 165 

Mandamus  to  restore  to  membership  in  a  private  corporation         .     166 

"Will  a  mandamus  lie  to  restore  to  membership  in  a  private  corpora- 
tion when  no  pecuniary  interests  are  involved?         .         .         .167 

What  irregularities  in  expelling  a  member  of  a  private  corporation 

will  vitiate  such  expulsion  when  it  is  reviewed  by  mandamus  .     168 

Expelled  members  must  appeal  to  appellate  tribunals  before  they 

can  call  for  a  mandamus 169 

Mandamus  to  restore  a  member  will  not  issue  when  he  may  be  reg- 
ularly expelled  upon  his  restoration 170 

An  action  for  damages  for  expulsion  from  a  corporation  is  a  waiver 

of  all  right  to  apply  for  a  restoration  by  mandamus         .        .     171 

Mandamus  to  admit  to  membership  in  private  corporations   .         .     172 

Mandamus  to  restore  or  to  admit  an  officer  of  a  private  corpora- 
tion   173 

Mandamus  to  benevolent  associations  to  pay  death  losses        .         .174 

If  a  private  corporation  has  a  visitor,  a  mandamus  lies  only  when 

he  fails  to  act   ..........     175 

Mandamus  issues  in  ecclesiastical  matters  only  when  property 

rights  are  involved  .........     176 

Mandamus  to  a  foreign  corporation 177 


TABLE   OF   CONTENTS.  xi 

CHAPTER  13. 

MANDAMUS  TO  CANVASSERS  OF  ELECTIONS. 

Section. 

The  duties  of  canvassing  boards  are  ministerial      ....     178 

When  the  canvassing  board  may  reject,  and  when  they  must  count, 

votes 179 

Will  any  evidence  be  received  except  the  returns  when  a  man- 
damus is  asked  for  against  the  canvassers  of  an  election?         .     180 

A  mandamus  will  issue  to  compel  the  proper  officer  to  declare  the 

result  of  the  election 181 

Mandamus  will  issue  to  the  canvassing  board  though  they  have 

already  given  another  the  certificate 182 

The  peremptory  writ  will  specifically  direct  the  canvassing  board 

what  to  do 183 

Mandamus  will  not  lie  when  another  remedy  or  the  board  had  dis- 
cretion or  the  writ  was  illegal 184 

By  mandamus  the  canvassing  board  may  be  required  to  reconvene 

and  do  their  duty,  though  they  have  adjourned  sine  die  .         .     185 

CHAPTER  14 

MANDAMUS  TO  COURTS. 

Mandamus  lies  to  courts  as  to  ministerial  acts  ....  186 
Mandamus  does  not  lie  to  control  the  judicial  discretion  of  a  court  187 
Discretion  of  a  court  will  be  reviewed  when  it  is  guided  by  fraud, 

passion,  prejudice  or  adverse  interest        .....     188 
Mandamus  to  courts  to  compel  judicial  action,  but  not  to  con- 
trol it       189 

Mandamus  lies  to  make  a  judge  sign  a  bill  of  exceptions        .         .     190 
Application  under  the  statute  of  Westminster  to  compel  the  sign- 
ing of  a  bill  of  exceptions 191 

The  bill  of  exceptions  must  be  presented  to  the  judge  within  the 

proper  time 192 

No  one  can  be  required  to  sign  a  bill  of  exceptions  except  an  officer    193 
Cases  where  a  mandamus  to  sign  a  bill  of  exceptions  will  be  re- 
fused         194 

Mandamus  to  restore  attorneys  who  have  been  disbarred  .  .  195 
Mandamus  not  granted  to  review  interlocutory  proceedings  of  the 

courts 196 

Exceptions  to  the  rule 197 

Mandamus  often  granted  in  Louisiana  to  review  interlocutory  or- 
ders   198 

Interlocutory  orders  of  courts  may  in  Alabama  be  reviewed  by  the 

writ  of  mandamus 19'J 

Interlocutory  orders  of  courts  may  in  Michigan  be  reviewed  by 

writs  of  mandamus 200 

Afandamus  cannot  take  the  place  of  an  appeal  or  writ  of  error      .    201 


Xii  TABLE   OF   CONTENTS. 

Section. 

Mandamus  will  not  always  lie,  though  appeal  or  writ  of  error  not 

allowable •     202 

Mandamus  lies  to  compel  a  court  to  try  a  cause,  when  it  refuses  to 

do  so  on  the  erroneous  decision  that  it  has  no  jurisdiction        .     203 

When  a  court  for  any  cause  improperly  refuses  to  proceed  in  a 

cause,  mandamus  lies  to  compel  action 204 

Disputed  question  whether  appealed  or  mandamus  lies  upon  an  er- 
roneous dismissal  of  an  appeal  by  the  lower  court     .         .         .205 

"When  an  appeal  is  wrongfully  dismissed  for  matters  occurring  sub- 
sequent to  its  docketing,  it  may  be  reinstated  on  the  docket  by 
a  mandamus     ......••••     206 

When  a  mandamus  lies  to  compel  a  court  to  hear  a  cause,  when  it 
has  declined  to  hear  it  by  reason  of  an  erroneous  decision  on 
some  preliminary  question 207 

Mandamus  to  compel  the  allowance  of  an  appeal   ....     208 

Mandamus  will  not  lie  to  a  court  when  there  is  another  remedy     .     209 

Litigants  cannot  by  agreement  create  duties  which  the  court  may 

be  compelled  by  mandamus  to  perform 210 

Special  instances  where  a  mandamus  was  not  required  or  would 

have  been  inefficacious     . 211 

Mandamus  to  justices  of  the  peace  ......     212 

CHAPTER  15. 

WHAT  COURTS  ISSUE  THE  WRIT  OF  MANDAMUS. 

Courts  of  general  common-law  jurisdiction  issue  writs  of  man- 
damus        213 

In  issuing  writs  of  mandamus  courts  exercise  original  or  appel- 
late jurisdiction 214 

Issue  of  writs  of  mandamus  by  appellate  courts     ....  215 

Issue  of  mandamus  by  the  United  States  supreme  court  .         .  216 

Issue  of  writs  of  mandamus  by  subordinate  federal  courts      .         .  217 

Mandamus  by  federal  courts  to  levy  a  tax  to  pay  their  judgments  218 

CHAPTER  16. 

RELATIONS  BETWEEN  FEDERAL  AND  STATE  COURTS  AND  OFFICERS  RELA- 
TIVE TO  THE  USE  OF  THE  WRIT  OF  MANDAMUS. 

Federal  courts  can  issue  a  mandamus  to  all  state  officers,  except  ju- 
dicial officers,  but  state  courts  cannot  to  federal  officers    .         .219 

Mandamus  in  connection  with  the  transfer  of  causes  from  the  state 

to  the  federal  courts 220 

CHAPTER  17. 

APPLICATION  TO  OFFICER  TO  PERFORM  HIS  DUTY. 
Mandamus  is  never  issued  unless  the  respondent  is  in  default  in  the 

performance  of  his  duty 221 


TABLE    OF   CONTEXTS.  Xlll 

Section. 

A  demand  must  be  made  before  the  writ  will  issue         .        .         .  223 

A  refusal  to  comply  must  be  shown  before  the  writ  will  issue        .  333 

When  personal  demand  is  unnecessary 224 

A  positive  refusal  to  perform  the  duty  is  not  always  necessary  — 

Conduct  may  be  equivalent  to  a  refusal 225 

A  demand  cannot  be  made  before  the  time  has  expired  wherein  the 

officer  is  allowed  to  do  the  act  .......  226 

Will  a  mandamus  lie  when  the  power  to  do  the  act  for  that  year 

ceases  with  the  occurrence  of  the  default?        ....  227 

CHAPTER  18. 

PARTIES  TO   MANDAMUS  PROCEEDINGS. 

Parties  in  interest  must  be  the  relators  in  mandamus  proceedings 

to  protect  private  rights 228 

Can  a  private  party  be  the  relator  to  enforce  a  public  right?  .        .     229 

Subject  continued 230 

Public  officers,  but  not  their  agents,  can  apply  for  this  writ  as  rela- 
tors even  against  their  co-officers 231 

Who  may  be  joined  as  relators 232 

Does  the  writ  abate  by  the  death  of  the  relator  or  the  expiration  of 

his  term  of  office? 233 

The  writ  must  issue  against  him  whose  duty  it  is  to  do  the  act  de- 
sired          234 

All  persons  charged  with  the  performance  of  the  duty  must  be 

joined  as  respondents,  but  none  others 234a 

All  persons  concerned  in  the  separate  but  co-operative  steps  in  the 
attainment  of  the  result  sought  may  be  joined  as  respondents 
in  one  mandamus 235 

Contrary  rulings  on  the  last  proposition 236 

How  the  manda7ims  should  be  directed  when  a  corporation  is  the 

respondent        ........••     237 

Does  the  writ  abate  upon  the  resignation,  or  expiration  of  the  term 

of  office,  of  the  respondent? 238 

When  the  resignation  alone  does  not  vacate  the  office,  such  resig- 
nation may  be  disregarded  till  the  office  is  legally  vacated        .     239 

Where  a  corporation  or  a  select  body  is  the  respondent,  no  change 

in  its  membership  will  affect  the  proceedings  ....     240 

Maiidamiis  not  lie  to  one  having  no  duty  in  the  premises  or  who 

has  gone  out  of  office        ......••     241 

Can  third  parties  be  subsequently  brought  in  as  relators  or  respond- 
ents?          243 

Subject  continued 242a 

Third  persons  interested  should  be  allowed  to  intervene  or  should 

be  made  parties        ....■••••     243 

Third  parties  not  allowed  to  intervene  to  litigate  matters  not  in- 
volved in  the  mandamus  proceedings 244 


XIV  TABLE    OF   CONTENTS. 

CHAPTER  19. 
PLEADINGS  AND  PRACTICE  IN  MANDAMUS  PROCEEDING& 

Section. 

First  proceeding  is  a  motion  asking  for  the  writ    .        .        .  245 

The  motion  for  a  mandamus  must  be  verified         ....  246 
The  affidavits  for  the  motion  should  be  entitled  of  the  court  but 

not  of  the  cause 247 

Sufficiency  of  the  jurat  to  the  petition  for  a  mandamus          .        .  248 

Action  of  the  court  on  the  petition  for  a  mandamus       .        .         .  249 
When  the  court  will  grant  the  alternative  writ  on  the  motion  to 

show  cause 250 

When  the  court  will  issue  a  peremptory  writ  without  any  notice  to 

the  respondent          ....                 ....  251 

Action  of  the  court  on  the  hearing  of  the  motion  to  show  cause    .  252 

The  alternative  writ  becomes  the  first  pleading  in  the  cause  .        .  253 

Particularity  of  statement  required  in  the  alternative  writ      .         .  254 

Subject  continued 255 

Illustrations  of  the  particularity  required  in  the  writ      *.         .         .  256 
The  alternative  writ  must  show  that  the  proper  demand  of  per- 
formance was  made  of  the  facts  rendering  a  demand  unneces- 
sary         ...........  257 

A  refusal  by  the  respondent  to  act  must  be  alleged  in  the  alterna- 
tive writ  or  the  facts  equivalent  to  a  refusal     ....  258 

The  alternative  writ  must  show  that  the  relator  has  no  legal  rem- 
edy except  the  writ  of  mandamus 259 

Particularity  required  in  the  mandatory  clause  of  the  alternative 

writ 260 

Documents  of  importance  in  the  case  should  accompany  a  petition 

for  a  mandamus 261 

The  alternative  writ  should  conform  to  the  petition        .        .        .  262 

Mode  of  setting  out  the  facts  in  the  alternative  writ        .         .         .  263 

The  manner  in  which  mandamus  proceedings  are  entitled      .         .  264 
Where  there  is  an  informality  in  the  alternative  writ  an  alias  may 

issue         ...........  265 

Proceeding  when  no  return  is  made  to  the  alternative  writ     .        .  266 

A  return  of  obedience  to  the  alternative  writ           ....  267 

The  early  practice  in  mandamus  proceedings          ....  268 

When  a  motion  lies  to  quash  the  alternative  writ   ....  269 

Demurrer  to  the  alternative  writ 270 

Amendment  to  alternative  writ       .......  271 

Return  after  the  overruling  of  the  demurrer  to,  or  motion  to  quash, 

the  alternative  writ 272 

No  prescribed  form  for  a  return,  but  it  must  contain  the  necessary 

allegations 273 

Certainty  and  completeness  of  statement  required  in  a  return        .  274 


TABLE   OF   CONTENTS.  XV 

Section. 
Certainty  required  in  a  return  to  a  writ  to  restore  a  party  removed 

from  office  or  membership  in  a  corporation     .         .         .    ,     .  275 

A  return  is  sufficient  which  follows  the  suggestions  of  the  writ      .  276 

Several  defenses  may  be  stated  in  a  return 277 

Pendency  of  other  litigation  pleaded  in  abatement          .        .        .  278 

Pleas  puis  darrein  continuance 279 

Positiveness  of  allegation  required  in  a  return        .         .         .         .280 

Instances  of  returns  which  were  adjudged  to  be  insufficient  .        .  281 

"Who  shall  make  the  return 282 

Verification  of  the  return 283 

Treatment  of  a  return  which  is  evasive  or  frivolous        .        .        .  284 

Demurrer  to  a  return  and  rules  governing  it 285 

Subject  continued 286 

Amendment  of  return 287 

Reply  to  the  return 288 

Reply  and  subsequent  proceedings 289 

Trial  by  jury  ....                  290 

Relator  must  prove  his  right  to  all  he  asks  for  ...  291 
General  rules  of  practice  and  of  pleading  as  applicable  to  mandamus 

proceedings •  292 

Amendments  under  the  early  practice 293 

Amendments  under  the  present  practice 294 

All  the  issues  must  be  disposed  of  before  the  peremptory  writ  will 

issue •        •  *°" 

How  far  the  peremptory  writ  must  conform  to  the  alternative  .  296 
When  the  peremptory  writ  will  be.  quashed,  or  disobedience  of  it 

excused , 297 

Attachment  for  making  no  return  to  or  for  not  obeying  a  peremp- 
tory writ .298 

The  peremptory  writ  must  be  fairly  and  honestly  complied  with    .  299 
Defenses  which  may  be  urged  against  an  attachment  on  the  hear- 
ing of  a  motion  to  show  cause  why  an  attachment  should  not 

issue  for  disobeying  a  peremptory  mandamus  ....  300 
Defects  appearing  on  the  papers,  on  account  of  which  an  attach- 
ment for  disobedience  of  a  peremptory  writ  of  mandamus  will 

be  refused 801 

Proceedings  when  a  party  is  adjudged  guilty  of  contempt  of  court  302 
Proceedings  for  contempt  of  court  against  corporations  and  boards  303 
When  an  appeal  lies  in  a  mandamus  proceeding  under  English  law  304 
An  appeal  is  granted  in  America,  in  mandamus  proceedings,  when- 
ever the  action  taken  is  considered  to  be  a  final  judgment  .  305 
Appeal  or  writ  of  error  lies  if  the  writ  is  refused  on  the  reading  of 

the  petition 806 

Proceedings  in  review  in  the  appellate  court 307 

The  right  to  review  mandamus  proceedings  by  appeal  or  writ  of 

error  does  not  always  exist «>08 


XVI 


TABLE    OF    CONTENTS. 


Section. 
Is  a  peremptory  mandamus  suspended  by  an  appeal  with  an  indem- 
nifying bond? 309 

Costs  in  mandamus  proceedings 310 

CHAPTER  20. 

MISCELLANEOUS  PRINCIPLES. 


Mandamus  bars  a  suit  for  damages  and  vice  versa  .... 
An  injunction  will  not  issue  against  the  prosecution  of  a  marl' 

damus 

Mandamus  not  always  issued  when  there  is  no  other  remedy  . 

Statute  of  limitations,  how  far  applicable 

Res  judicata  in  mandamus  proceedings  .        •        •        . 

CHAPTER  21. 

FORMS  IN  MANDAMUS  PROCEEDINGS. 

Entitling  the  petition 

Form  of  the  body  of  the  petition 

Verification  of  the  petition 

Form  of  the  alternative  writ  . 

Requirements  of  the  return    . 

Form  of  final  judgment  . 

Illustrations  of  the  necessary  pleadings 


311 

812 
313 
314 
315 


316 
317 

318 
319 
320 
321 


TABLE  OF  CASES  CITED. 


A. 

Abrams,   Ex  parte,    48   Ala.    151. 

§199. 
Ackerman  v.  Desha  Co.,  27  Ark. 

457.    §  75. 
Adams  v.  Mathis,  18  N.  J.  L.  310. 

§205. 
Adkins    v.    Doolen,  23  Kan.   659. 

§229. 
Ah  Sep  v.  Gong  Choy,  13  Oreg.  205. 

§190. 
Alabama,  etc.  Co.,  Ex  parte,  59  Ala. 

192.    §199. 
Albany  (Com.  Council),  Ex  parte,  3 

Cow.  358.    §  127. 
Albin  v.  Ind.  Dist.  (Board  Direct- 
ors), 58  Iowa,  77.    §  115. 
Alderson  v.  Com'rs,  31  W.  Va.  633. 

§185. 
Alexander  v.   State,  82  Tenn.   (14 

Lea),  88.     §§  190,  192. 
Alger   v.    Seaver,    138    Mass.   331. 

§§  62,  63,  84. 
Allen  v.  Kobinson,  17  Minn.   113. 

§144. 
Allnutt  v.  Subsidiary,  etc.  Court,  62 

Mich.  110.    §  166. 
American   C.   Co.   v.   Licking  Co. 

(Com'rs),  31  Ohio  St.  415. 

§117. 
American,  etc.  Co.  v.  Bell,  etc.  Co., 

1  McCrary,  175.     §  217. 
v.  Haven,  101  Mass.  398.    §§  21, 

62. 
Amperse  v.  Kalamazoo  (City),  59 

Mich.  78.    §§  40,  274. 


Amy  v.  Watertown,  130  U.  S.  301. 

§239. 
Anacosta  Tribe  v.  Marbach,  13  Md. 

91.    §  166. 
Anderson  v.   Pennie,  32  Cal.  265. 

§212. 
Andover,  Case  of,  2  Salk.  433 ;  13 

Mod.  332.    §  232. 
Anonymous,  2  Chit.  253.     §  21. 
2  Chit.  254.     §  234a. 
2  Chit.  255.     §  154. 

1  Barn.  (K.  B.)  402.    §  165. 
7  N.  J.  L.  160.    §  187. 

2  Salk.  436.     §  232. 
2  Salk.  525.     §  269. 

Antoni  v.  Greenhow,  107  U.  S.  769. 

§20. 
Apgar  v.  Trustees,  34  N.  J.  L.  308. 

§§  115,  311. 
Aplin  v.  Grand  Traverse  County, 

73  Mich.  182.    §  89. 
v.  Midland  Co.  (Sup'rs),  84  Mich. 

121.    §  285. 
v.   Van    Tassel,   73   Mich.    28. 

§§  88,  89. 
Appleford's  Case,  1  Mod.  82.    §§  37, 

175. 
Applegate  v.   Applegate,   4    Mete. 

(Ky.)236.    §189. 
Arberryv.  Beavers,  6  Tex.  457.   §§30, 

40,  51,  57,  108,  254,  266^  294. 
Armijo  v.  Territory,  1  N.  Mex.  580. 

§251. 
Arno  v.  Circuit  Court,  42  Mich.  362. 

§200. 
Arrington  v.   Cotton,  1  Baxt  316. 

§115. 


XV111 


CASES    CITED. 


Arlington  v.  Van  Houton,  44  Ala 

284.    §  51. 
Ashby  v.  Wellington,  8  Pick.  524. 

§22. 
Aspen  (Mayor)  v.  Aspen,  etc.  Co.,  10 

Colo.  191.    §  57. 
Assessor  of  Taxes  v.  State,  44  N. 

J.  L.  395.    §  20. 
Atchison    v.    Lucas,    83    Ky.  451. 

§56. 
Atchison,  etc.  R  R.  v.  Jefferson  Co. 
(Com'rs),     12      Kan.     127. 
§§  82,  128. 
Attala  Co.  (Board  Police)  v.  Grant, 
9  Sm.  &  Mar.  77.    §§  251, 
252,  285. 
Attorney-General   v.    Albion,    etc. 
Inst,  52  Wis.  469.    §229. 
v.  Barstow,  4  Wis.  567.    §  97. 
v.  Boston,  123  Mass.  460.    §§  9, 

•29,  51,  227,  230. 
v.  Chicago,  etc.  R.  R.,  35  Wis. 

425.    §88. 
v.  Lawrence  (City),  111  Mass. 

90.    §  79. 
v.  Lum,  2  Wis.  507.     §  85. 
v.  New  Bedford  (Mayor),  128 

Mass.  312.    §  63. 
v.  New  Jersey,  etc.  Co.,  3  N.  J. 
Eq.  136.     §  43. 
Atwood  v.   Partree,  56  Conn.   80. 

§229. 
Auditor    v.   Halbert,  78   Ky.   577. 

§314. 
Auditorial  Board  v.  Aries,  15  Tex. 
72.    §126. 
v.  Hendrick,  20  Tex.  60.    §  126. 
Audly's  Case,  Latch,  123.    §  283. 
Austen  v.  Probate  Court,  35  Mo. 

198.    §  204. 
Austin  v.   Searing,  16   N.  Y.    112. 

§158. 
Avery  v.  Krakow  (Tp.)  73  Mich.  622. 

§87. 
Ayers,  In  re,  123  U.  S.  443.    §§  89, 
98. 


B. 


Babcock  v.  Goodrich,  47  Cal.  488. 

§§  51,  53,  126,  249,  261,  322. 
Badger  v.  United  States,  93  U.  S. 

599.    §  239. 

Bagg's  Case,  11  Coke,  73.    §  137. 

Bailey  v.  Ewart,  52  Iowa,  111.  §  115. 

v.  Oviatt,  46  Vt.  627.   §§  21, 158, 

v.  Strohecker,  38  Ga.  259.  §160. 

Baker  v.  Johnson,  41  Me.  15.    §§53, 

55,  135. 
v.  Kirk,  33  Ind.  517.    §  93. 
v.  Marshall,  15  Minn.  180.  §  160. 
Baldwin  v.  Branch  Cir.  Judge,  48 

Mich.  525.    §  200. 
Ball  v.  Lappius,  3  Oreg.  55.    §  75. 
Ballou  v.  Smith,  29  N.  H.  530.  §  212. 
Baltimore,  etc.  R.  R,  Ex  parte,  108 

U.  S.  566.    §§  46,  201,  203. 

205. 
Bank  of  California  v.  Shaber,  55 

Cal.  322.    §  135. 
Bank  of  State  v.  Harrison,  66  Ga. 

696.     §§  21,  62,  160. 
Banks,  Ex  parte,  28  Ala.  28.    §  199. 
Banton  v.  Wilson,  4  Tex.  400.  §§  146, 

148. 
Barkley  v.  Levee  Com'rs,  93  U.  S. 

258.     §§218,240. 
Barksdale  v.  Cobb,  16  Ga.  13.    §§51, 

53,  201. 
Barnes,  Ex  parte,  84  Ala.  540.  §  199. 
Barnet  v.  Dir.  Ind.  Dist.,  73  Iowa, 

134.     §  51. 
Barney  v.  State,  42  Md.  480.  §§  159, 

285. 
Barrows    v.    Mass.    Med.    Soc.,   12 

Cush.  402.    §  166. 
Bass  v.  Shakopee  City,  27  Minn.  250. 

§303. 
v.  Taft,  137  U.  S.  458.    §  111. 
Bassett  v.  Barbin,  11  La,  An.  672. 

§§  65,  129. 
Bates  v.  Detroit,  etc.  Assoc.,  47  Mich. 

646.    §  174. 


CASES    CITED. 


XIX 


Bates  v.  Overseers  of  Poor,  14  Gray, 
163.     §  231. 
v.  Taylor,  87  Term.  319.    §94 
Bath  County  v.  Amy,  13  Wall  244. 

§217. 
Bauer  v.  Sampson  Lodge,  102  Ind. 

262.     §  169. 
Bayard  v.  United  States,  127  U.  S. 

246.     §§  56,  101. 
Bayne  v.  Jenkins,  66    N.   C.   356. 

§103. 
Beaman  v.  Lake  Co.  (Board  of  Po- 
lice), 42  Miss.   237.     §§  55, 
56. 
Bean  v.  People,  6  Colo.  98.     §§  213, 
305. 
v.  Barton  Co.  Court,  33  Mo.  Ap. 
635.     §  119. 
Beard  v.  Lee  Co.  (Sup'rs),  51  Miss. 

542.    §§  33,  130. 
Beaulieu  v.  Pleasant  Hill  (City),  4 

McCrary,  544.     §  132. 
Beck    v.    Jackson,    43    Mo.     117. 

§152. 
Becke,  Ex  parte,  3  B.  &  Ad.  704. 

§§  39,  187. 
Beebe  v.  Lockert,  6  Ark.  422.  §  208. 
Beecher  v.  Anderson,  45  Mich.  543. 

§  242a. 
Beguhl  v.  Swan,  39  CaL  411.    §§  46, 

203. 
Belcher  v.  Treat,  61  Me.  577.    §  61. 
Bell  v.  Pike,  53  N.  H.  473.    §  114. 
Benbow  v.  Iowa  City,  7  WalL  313. 

§281. 
Benedict  v.  Howell,  39  N.  J.  L.  221. 

§190. 
Benjamin   v.    Prieur,  8  Rob.    193. 

§219. 
Benson  v.  Paul,  6  EL   &  BL  273. 

§16. 
Biggs  v.  McBride,  17    Oreg.    640. 

§§  13, 17,  143. 
Birmingham  F.  L  Co.  v.  Com.,  92 

Pa.  St.  72.    §  160. 
Black,  Ex  parte,   1   Ohio    St.    80. 
§111. 


Black  v.  Auditor,  26  Ark.  237.  §§  46, 

102,  105,  246. 
Black,   etc.    Soc.    v.   Vandyke,    2 

Whart.  309.    §§  157,  166. 
Blair  v.  Marye,  80  Va.  485.    §§  12, 

51. 
Bledsoe  v.  International  R.  R.,  40 

Tex.  537.     §§  30, 94,  99. 
Blisset  v.    Daniel,   10    Hare,    493. 

§166. 
Block  v.  Com'rs,  99  U.  S.  686.    §  315. 
Blunt  v.  Greenwood,  1  Cowen,  15. 

§197. 
Board  of  Educ.  v.  Detroit  (City),  80 

Mich.  548.     §  60. 
Board  of  Improv.  v.  McManus,  54 

Ark.  446.     §  126. 
Board  of  Liquid,  v.   McComb,   92 

U.  S.  531.     §  228. 
Board  of  Police  v.  Grant,  9  Sm.  & 

Mar.  77.     §  204. 
Board  of  Supervisors  v.  People,  110 

111.  511.     §  33. 
Bobbett  v.  State,  10  Kans.  9.    §  229. 
Boggs  v.  Chicago,   etc.   R.    R.,   54 

Iowa,  435.    §§  1, 13, 21, 159. 
Bonner  v.  State,  7  Ga.  473.     §§  93, 

143. 
Boom    v.  De  Haven,  72  CaL  280. 

§219. 
Boone  Co.  (Board  Com'rs)  v.  State, 

38  Ind.  193.     §§  53, 116. 
v.  State,  61   Ind.  379.    §§  153, 

270. 
Boone    Co.    v.    Todd,    3   Mo.   140. 

§111. 
Booth  v.  Strippleman,  61  Tex.  378. 

§285. 
Boothe,  Ex  parte,  64  Ala.  312.  §  201. 
Booze  v.  Humbird,  27  Md.  1.   §§  66, 

233. 
Boraim  v.   De  Costa,   4  Ala.   393. 

§199. 
Boren    v.   Darke    Co.   (Com'rs),  21 

Ohio  St.  311.    §  117. 
Borgraefe  v.  Knights  of  Honor,  22 

Mo.  Ap.  127.     §  16a 


XX 


CASES   CITED. 


Boston  T.  Co.  v.  Pomfret  (Town),  20 

Conn.  590.    §  114. 
Bostwick,  Ex   parte,   1  Cow.   148. 

§201. 
Bos  worth    v.   Webster,   64    CaL  1. 

§§  75,  133. 
Bouldin  v.  Alexander,  15  Wall.  131. 

§176. 
Bowers    v.    Taylor,   127    Ind.   272. 

§§  274,  301. 
Boynton  v.  Newton  (Dist.  Town.), 

34  Iawa,  510.    §  130. 
Bracken  v.  Wells,  3  Tex.  88.     §  67. 
Bradley,    Ex    parte,    7  Wall.   364. 

§§  40,  195,  216,  313. 
Bradstreet,  Ex  parte,  4  Pet   102. 

§190. 

7  Pet.  634.    §§  189,  216,  273. 

8  Pet.  588.     §  196. 

Brady  v.  New  York  (Supervisors),  2 

Sandf.  460.     §  111. 
Brashear    v.    Mason,  6    How.  92. 

§§  100,  306. 
Brazier  v.  Tarver,  4  Ala.  569.  §  199. 
Brem  v.  Arkansas  County  Co.  Court, 

9  Ark.  240.    §204. 
Brennan    v.    Harris,  20   Ala   185. 

§189. 
Brewer    v.   Watson,    61    Ala   310. 

§155. 
Brigenoth  (Bailiff's)  Case  of,  2  Stra 

808.    §303. 
Briggs,  Ex  parte,  1   E.  &  E.  881. 

§§  14,  155. 
Briggs    v.   Hopkins,    16    R   L   83. 

§§  30,  40,  48. 
Briscoe  v.  Ward,  1  Har.  &  J.  165. 

§190. 
Bristol,  etc.  R.  R,  In  re,  3  Q.  B.  D. 

10.     §§  76. 164. 
Brokaw  v.  Com'rs  of  Highways,  130 

111.  482.     §§  34,  40,  81. 
Bromley,   In    re,   3  D.   &    R   310. 

§204. 
Brooke  v.  Ewers,  1  Stra  113.   §  189. 
Brosius  v.  Reuter,  1  Harr.  &  Johns. 

551.    §  22. 


Brower   v.    O'Brien,    2    Ind.    423. 

§§  61,  264. 
Brown,  Ex  parte,   116  U.  S.  401. 

§206. 
Brown  v.  Board  Com'rs,  38  Kans. 

436.     §  182. 
v.  Buck,  75  Mich.  274.    §  200. 
v.  Crego,  32  Iowa  498.     §§  135, 

219. 
v.  Crippen,  4  Hen.  &  M.  173. 

§220. 
v.  Ruse,  69  Tex.  589.    §§  246, 270. 
Brownsville  v.  Loague,  129  U.  S. 

493.    §§  50,  131,  218. 
Bruce  v.  Williamson,  50  Ala  313. 

§199. 
Bryan    v.    CattelL    15    Iowa,    538. 

§105. 
Bryson  v.  Spaulding,  20  Kans.  427. 

§§  121,  223. 
Buckley  v.   Palmer,    2   Salk.  430. 

§268. 
Buck-man  v.  Beaufort  (Com'rs),  80 

N.  C.  121.     §  32. 
Budd  v.  New  Jersey,  etc.  Co.,  14 

N.  J.  L.  467.    §  204. 
Buffalo,  etc.  R  R  v.  Com.,  120  Pa. 

St.  537.    §  51. 
Burdett,  In  re,  127  U.  S.  771.    §§  216, 

313. 
Burgess  of    Devises,  2    Keb.    725. 

§283. 
Burke  v.  Monroe  Co.  (Sup'rs),  4  W. 

Va.  371.     §  179. 
Burkhart  v.  Reed,  134  U.  S.  361. 

§107. 
Burland      v.      Northwestern,     etc. 

Assoc,  47  Micb.  424.    §§  16, 

17,  174,  315. 
Burnet  v.  Portage  Co.  (Aud.),   12 

Ohio  St.  54.     §§  32,  37,  107. 
Burnsville  I.  Co.  v.  State,  119  Ind. 

382.     §§  56,  61,  160,  290. 
Burr,    Ex    parte,    9    Wheat.    529. 

§§  41,  195,  216. 
Burr    v.    Norton,    25    Conn.    103. 

§§  142,  148,  155. 


CASES    CITED. 


XXI 


*   Burt  v.  Reilly,  82  Mich.  251.   §  72. 
v.  Michigan  Grand  Lodge,  66 

Mich.  85.     §§  157,  166,  169. 
Burtis,  Ex    parte,   103   U.   S.  238. 

§§  42,  43,  187. 
Butler  v.  Coblet,  11  Mod.  254.    §  127. 
Butterworth  v.  Hoe,  112  U.  S.  50. 

§101. 
Button  v.  Platte    City,  2  DilL   1. 

§130. 
Butz  v.  Muscatine  (City),  8  Wall. 

575.    §§129,130. 
Byrne  v.  Harbison,  1  Mo.  225.   §  209. 

c. 

Cabaniss  v.  Hill,  74  Ga.  845.  §  130. 
Cage,  Ex  parte,  45  CaL  248.  §  201. 
Cairo  (City)  v.   Campbell,   116  111. 

305.     §  226. 
v.  Everett,  107  EL  75.    §  225. 
Calaveras  County  v.  Brockway,  30 

Cal.  325.     §§  125,  178,  278, 

290. 
Calne  (Borough),  Case  of,  2  Stra. 

948.    §§109,155. 
Campbell,  Ex    parte,    20   Ala.   89. 

§187. 
Campbell  v.  Wallen,  Mart  &  Yerg. 

266.     §220. 
Campau  v.   Board  Public  Works, 

86  Mich.  372.     §  83. 
Canada  C.  R.  R,  In  re,  35  Up.  Can. 

Q.  B.  390.     §  235. 
Canal  (Board    Trustees)  v.  People, 

12  111.248.    §255. 
Canal    Com'rs   (Board)    v.    Willa- 
mette, etc.  Co.,  6  Oreg.  219. 

§25. 
Candee,    Ex    parte.    48    Ala,    386. 

§§  47,  118,  274,  277,  279,  306. 
Cannon  v.  Janvier,  3    Houst   27. 

§245. 
Canova  v.  State,  18  Fla.  512.     §S  20, 

274. 
Cape  Girardeau  Co.  Court  v.  Hill, 

118  U.  S.  68.    §20. 


Careaga  v.    Fernald,  66  Cal   351. 

§§  53,  305. 
Cariaga    v.    Dryden,  29    Cal.   307. 

§313. 
Carlton  High  Dale,  Ex  parte,  4  N. 

&  M.  312.     §  81 
Carnochan,  Ex  parte,  Charlt  216. 

§85. 
Carpenter  v.   Bristol  (Co.  Com'rs), 

21  Pick.  258.     §§  29,  111. 
Carr  v.  State,  127  Ind.  204    §§  89, 

105. 
Carrick  v.   Lamar,  116  U.  S.  423. 

§§  29,  81,  101. 
Casky  v.   Haviland,    13    Ala.    314. 

§  189. 
Cass  Township  v.  Dillon,  16  Ohio  St 

38.     §  134. 
Castello  v.  St  Louis  Cir.  Ct,  28  Mo. 

259.    §  46. 
Castle  v.    Lawlor,   47    Conn.    340. 

§290. 
Catlettsburg  (Trustees)  v.  Kiuner, 

13  Bush,  334.     §§  40,  229. 
Cavanaugh  v.  Wright,  2  Nev.  166. 

§203. 
Central,  etc.  Co.  v.  Com.,  114  Pa.  St 

592.     §§254,274. 
Central  U.  T.  Co.  v.  State,  118  Ind. 

194.     §§  25,  162. 
v.  State,  123  Iud.   113.     §§  25, 

162. 
Chalk  v.  Darden,  47  Tex.  438.     §  106. 
Chamberlain,  Ex  parte,  4  Cow.  49. 

§187. 
Chamberlain  v.  Lincoln,  129  Mass. 

70.     §  169. 
Chambers,   Ex  parte,   10  Mo.  Ap. 

240.    §§  53,  196. 
Chance   v.  Temple,   1    Iowa,   179. 

§§  56,  89,  90,  228,  239,  247, 

249,  250,  251,  255,  257,  263, 

264,  268,  270,  272,  274,  283, 
291,  296,  305. 
Chase  v.  Blackstone  C.  Co.,  10  Pick. 
244.     §  187. 
v.  Cheney,  58  IlL  509.    §  176. 


XX11 


CASES    CITED. 


Chase   v.  Morrison,   40  Iowa,  620. 

§115. 
Chastain  v.  Armstrong,  85  Ala  215. 

§199. 
Chateaugay,    etc.    Co.,    Petitioner, 

128  U.  S.  279.    §  190. 
Chesapeake,  etc.  Co.  v.  Baltimore, 

etc.  Co.,  66  Md.  399.     §  25. 
Chesebro  v.  Babcock,  59  Conn.  213. 

§305. 
v.  Montgomery,  70  Mich.  650. 

§200. 
Chicago,  etc.  R.  R.  v.  Franks,   55 

Mo.  325.    §  212. 
v.  Iowa,  94  U.  S.  155.     §  25. 
v.  People,  56  111.  365.     §  27. 
v.  Suffern,  129  I1L  274.     §§  56, 

57,  230. 
v.  Wilson,  17  111.  123.    §  189. 
Chicot  Co.  v.  Kruse,  47  Ark.  80.   §  61. 
Chinn  v.  Trustees,  32  Ohio  St  236. 

§§  87,  314. 
Chisholm  v.  McGehee,  41  Ala.  192. 

§§  93,  104. 
Chumasero  v.  Potts,  2  Mont  242. 

§§  3,  13,  21,  61,  62,  93,  145, 

213,  224,  230,  264,  290. 
Churchill  v.  Emerick,  56  Mich.  536. 

§200. 
v.  Martin,  65  Tex.  370.     §  309. 
Cincinnati  College  v.  Yeatman,  30 

Ohio  St.  276.    §  127. 
Cincinnati,  etc.  R  R.  v.  Clinton  Co. 

(Com'rs),    1    Ohio    St    77. 

§§  65,  128. 
Citizens'  Bank  v.  Wright  6  Ohio 

St  318.    §  105. 
City  v.  Sansum,  87  111.  182.    §§  131, 

237. 
Clapper,    Ex    parte,    3    Hill,    458. 

§§  60,  81,  116. 
Clark    v.    Board    Examiners,    126 

Mass.  282.     §§  178,  179. 
v.  Crane,  57  CaL   629.     §§  75, 

190, 192. 
v.  Elwick,  1  Stra.  1 ;  Barnes,  58. 

§24. 


Clark  v.  McKenzie,  7  Bush,   523. 

§§  178,  185,  238. 
Clarke  v.  Leicestershire,  etc.  Canal, 

6    Ad.    &    E.  (N.   S.)  898. 

§269. 
v.  Trenton,  49    N.  J.  L.  349. 

§143. 
Clarke  Co.  (Com'rs)  v.  State,  61  Ind. 

75.     §§  230,  282. 
Clarke  Co.  (Just.)  v.  Paris,  etc.  Co., 

11  B.  Mon.  143.    §§  128,  297. 
Clay  v.  Bolland  (Va.,  1891),  13  S.  E. 

Rep.  262.    §  14. 
Clay  County  v.  McAleer,  115  U.  S. 

616.     §§  20,  60,  129,  132. 
Clayton  v.  Mc Williams,  49  Miss.  311. 

§42. 
Clough    v.   Curtis,  134  U.  S.   361. 

§107. 
Coffin  v.  Davenport  (City  Council), 

26  Iowa,  515.     §§  129,  132. 
Coit  v.  Elliott  28  Ark.  294.    §  187. 
Cole,  Ex  parte,  28   Ala.  50.    §  199. 
Collarn's  Petition,  134  Pa,  St  551. 

§§  37,  40,  119. 
Colley  v.  Webster,  59    Conn.   361. 

§53. 
Colnon  v.  Orr,  71  Cal.  43.    §  14. 
Colonial,   etc.  Co.  v.  Board  Super- 
visors, 24  Barb.  166.     §  75. 
Colt  v.  Roberts,  28  Conn.  330.  §115. 
Columbia  Co.  (Com'rs)  v.  Bryson,  13 

Fla.  281.    §§  240,  312. 
v.  King,  13  Fla  451.    §§  20, 129, 

224,  225,  294 
Columbian  Ins.  Co.  v.  Wheelright  7 

Wheat  534.     §  308. 
Colvard  v.  Commissioners,  95  N.  C. 

515.    §§77,78. 
Commercial  Bank  v.  Canal  Com- 
missioners,  10    Wend.    25. 

§§  252,   255,   269,  274,  285, 

286,  304. 
Commissioner  of  Patents  v.  White- 
ley,  4  Wall.  522.     §  100. 
Commissioners  v.  Sellew,  99  U.  S. 

624.    §§240,303. 


CASES    CITED. 


XX111 


Commonwealth       v.        Allegheny 

(Com'rs),  16  S.  &  R  317.  §51. 
v.  Allegheny  (.Com'rs),  32  Pa.  St. 

218.    §§13,  274,  285. 
v.  Allegheny  (Com'rs),  37  Pa.  St 

237.     §224. 
v.  Allegheny  (Com'rs),  37  Pa,  St 

277.     §§  129,  225,  257,  260, 

274. 
v.  Allegheny  (Com'rs),  43  Pa.  St 

400.     §  129. 
v.  Bunn,  71  Pa.  St.  405.     §  189. 
v.  Cochran,  6  Binn.  456.     §§  32, 

37,  110. 
v.    County    Commissioners,    5 

Binn.  536.     §  115. 
v.    County    Commissioners,    5 

Rawle,  45.     §§  57, 138,  143. 
v.     Cumberland      C.      P.     Ct 

(Judges),   1    S.   &    R.   187. 

§§  11,  195. 
v.    District    Court    (Judges),   5 

Watts  &  S.  272.     §  195. 
v.  Emminger,  74  Pa   St.   479. 

§179. 
v.  Empire  P.  R.  R,  134  Pa.  St. 

237.     §§  68,  161. 
v.  Fairfax  Co.  (Just),  2  Va.  Cas. 

9.     §  111. 
v.  German  Society,  15  Pa.  St. 

251.     §£  166,  275. 
v.   Guardians  of    the  Poor,   6 

S.  &R469.  §§137,  147,166. 

168,  275. 
v.  Hampden  Sessions  (Just),  2 

Pick.  414.     §§  111,  225,257. 
v.  Henry,  49  Pa.  St  530.     §g  68, 

110,  283. 
v.  James,  135  Pa.  St  480.  §  109. 
v.  Johnson,  2  Binn.  275.     §  135. 
v.  Kanawha    Co.  (Just),  2  Va. 

Cas.  499.     §  111. 
v.  Lancaster    Co.     (Com'rs),    6 

Binn.  5.     §  126. 
v.  Loomis,  128  Pa.  St.  174    §116. 
v.  MeCandless,  129  Pa.  St.  492. 

§290. 


Commonwealth  v.  McLaughlin,  120 

Pa.  St.  518.     §  204. 
v.  Middlesex  (Sessions),  9  Mass. 

388.     §  189. 
v.  Mitchell,     82     Pa.     St    343. 

§§56,  117,229. 
v.  Norfolk    (Sessions),   5    Mass. 

434.     §  189. 
v.  Pennsylvania  B.  Inst.,  2  S.  & 

R  141.     §§  49,  168. 
.     v.  Perkins,  7  Pa.  St.  42.     §  112. 
v.  Philadelphia       (Com'rs),      1 

Whart  1.     §§  63,  283. 
v.  Philadelphia  C.  P.  (Judges), 

3  Binn.  273.     §  205. 
v.  Philanthropic   Soc,  5   Binn. 

486.     §  166. 
v.  Phoenix  Iron  Co.,  105  Pa.  St. 

111.     §  161. 
v.  Pike  B.  Soc,  8  Watts  &  S. 

247.     §§  166,  261. 
v.  Pittsburgh,    88    Pa    St    66. 

§  129. 
v.  Pittsburgh  (Sel.  Council),  34 

Pa   St   496.     §§   129,   222, 

225,  237,  257,  259,  274,  284, 

293,  294,  319,  322. 
v.  St  Patrick  B.  Soc,  2  Binn. 

441.     §  166. 
v.  Sheehan,     81     Pa    St.    132. 

§§116,  302. 
v.  Taylor,  36  Pa  St.  263.     §§  35, 

113.  297. 
Compton  v.  Airial,  9  La.  An.  496. 

§122. 
Condit  v.  Newton  Co.,  25  Ind.  422. 

§  221. 
Conlin  v.   Aldrich,   98    Mass.    557. 

§§  49,  146. 
Connitt  v.  Reformed,  etc  Church, 

54  N.  Y.  551.     §  176. 
Conrad  v.  Prieur,  5  Rob.  54.     §  219. 
Conrow  v.  Schloss,  55  Pa.  St.   28. 

§§  190,  191,  273. 
Cook  v.  College  Phy.  &  S.,  9  Bush, 

541.     §  158. 
v.  Tannar,  40  Cona  378.     §  245. 


XXIV 


CASES    CITED. 


Cooper  v.    Nelson,    38    Iowa,  440. 

§§  129,  131. 
Copeland    v.    State,    126    Ind.    51. 

§118. 
Corpus  Christi  (City)  v.  Woessner, 

58  Tex.  462.     §  132. 
Cortleyou  v.  Ten  Eyck,  22  N.  J.  L. 

45.     §  189. 
Cotten  v.  Ellis,  7  Jones,  545.     §  93. 
Cottle  v.  Harrold,  72  Ga  830.    §  190. 
County  Com'rs  (Board)  v.  Crotty,  9 

Colo.  318.     §  31. 
Coventry  (Mayor),  Case  of,  2  Salk. 

429.     §§  3,  266. 
Cowan    v.    Fulton,    23    Grat   579. 

§203. 
Cowell  v.    Buckelew,    14  Cal.  640. 

§§  84,  85. 
Cox  v.  Rich,  24  Kans.  20.     §  212. 
Coy   v.   Lyons    (City    Council),   17 

Iowa,  1.    §§  130,  132. 
Crane,  Ex  parte,  5  Pet  190.     §§  3, 

190,  214,  210. 
Crans    v.    Francis,    24    Kans.   750. 

§§  253,  289. 
Crawford  v.  Carson,  35   Ark.   565. 

§43. 
Crawford  County  (Com'rs)  v.  Louis- 
ville, etc.  R  R,  39  111.  192. 
§228. 
Craykendall,  Ex  parte,  6  Cow.  53. 

§197. 
Creager  v.  Meeker,  22  Ohio  St.  207. 

§190. 
Creary    v.    Rogers,    35    Ark.    298. 

§215. 
Crocker  v.  Old  South  Society,  106 

Mass.  489.     §§  166,  168. 
Cromastie  v.    Bladen  (Com'rs),   85 
N.  C.  211.     §§  130,  132,  300. 
Cromie,  In  re,  2  Biss.  160.     §  220. 
Crosby  v.  Fortescue,  5  Dowl.  273. 

§261. 
Cross  v.   West  Va.  etc.   R  R,  34 
W.  Va.  742.       §§  242a,  260. 
Crowell  v.  Lambert,  10  Minn.  369. 
§154. 


Culver  v.  Judge,  57  Mich.  25.   §  204. 
Cumberland,  etc.  R  R  v.Washing- 

ton   C.    Court    (Judge),    10 

Bush,  564.     §  312. 
Cummings  v.  Armstrong,  34  W.  Va. 

1.     §  190. 
Cummins  v.  Evansville,  etc.  R  R., 

115  Ind.  417.     §§  158,  159. 
Curningham  v.  Macon,   etc.  R  R., 

109  U.  S.  446.     §  89. 
v.    O'Connor,    80     Tenn.     397. 

§154. 
Curser  and  Smith,  1  Barn.  (K.  B.)59. 

§246. 
Cutcomp   v.   Mayor,  60   Iowa,  156. 

§77. 
Cuthbert  v.  Lewis,  6  Ala.  262.  §  126. 
Cutting,  Ex  parte,  94  U.  S.  14.  §§  57, 

221. 

D. 

Dacosta  v.  Russia  Co.,  2  Stra.  783. 

§22. 
Daly  v.  Dimock,  55  Conn.  579.  §  62. 
Dalton   v.  State.   43  Ohio  St.   652, 

§§  178,  179,  180. 
Daniel    v.    Warren  Co.     Court,    1 

Bibb,  496.     §  215. 
Daniels  v.  Miller,  8  Colo.  542.  §§  57, 

255. 
Dauley   v.   Whiteley,  14   Ark.  687. 

§105. 
Danville  v.  Blackwell,  80  W.  Va.  38. 

§187. 
Darrow  v.  People,  8  Colo.  417.    §  139. 
Davenport  v.  Dodge  Co.,  105  U.  S. 

237.     g§  217,  218. 
Davenport,   Ex   parte,  6  Pet   661. 

§187. 
Davies  v.   Corbin,    112    U.    S.    36. 

§S  305,  309. 
v.  McKeeby,  5  Nev.  369.    §  178. 
Davis  v.  Carter,  18  Tex.  400.    §§  85, 

262. 
v.  County  Com'rs,  63  Me.  396. 

§g  40,  41,  62,  112. 


CASES    CITED. 


XXV 


Davis  v.  Men  ash  a.  Village),  20  Wis. 

194.     S  19* 
v.  Porter,  66 « ,al.  658.     §  60. 
v.  Superior  Court,  63  Cal.  581. 

§65. 
Davisson  v.  Board  Supervisors,  70 

Cal.  612.     §  33. 
Dawson  v.  Thruston,  2  Hen.  &  M. 

132.     §111. 
Day  v.  Callow,  39  Cal.  593.     §  135. 
v.  Fleming  Co.  Court  (Just.),  3 

B.  Mon.  198.     £  189. 
Dearing   v.    Shepard,    78    Ga.    28. 

§130. 
De  Bode,  In  re,  6  Dowl.  776.     §  89. 
Decatur  v.  Paulding,  14  Pet.  497. 

§§  99,  306. 
De  Groot,  Ex  parte,  6   Wall.  497. 

§306. 
De  Haas  v.  Newaygo  Ch\  Judge,  46 

Mich.  12.     §  193. 
Delacey  v.    Neuse    R.   W.    Co.,    1 

Hawks,  274.     §  168. 
Delaney  v.   Goddin,  12  Grat.   266. 

§111- 
Delgado,  In  re,  140  U.  S.  586.   §  152. 
Dement  v.    Rokker,    126    111.    174. 

§61. 
Dennett,    Petitioner,    32    Me.    508. 

§94. 
Dennis,  Ex  parte,  48  Ala.  304.   §  210. 
Dental  Examiners  v.  People,  123  111. 

227.     §  40. 
Denver    v.     Hobart,    10    Nev.    28. 

§143. 
Detroit  (City)  v.  Hosmer,  79  Mich. 

384.     §  200. 
Detroit,  etc.  R  R  v.  Newton,   61 

Mich.  33.     §  200. 
Detroit,  etc.  Co.  v.  Gartner,  75  Mich. 

360.     §§  41,  200. 
Detroit  F.  P.  Co.  v.  Auditors  (Board), 

47  Mioh.  135.     §  16. 
Devin  v.  Belt,  70  Md.  352.     §  119. 
Dew  v.  Sweet  Springs  (Judges),  3 

Hen.  &  M.  1.    §§  146,  148 

242a. 


Dickerson  v.  Peters,  71  Pa,  St.  53. 

§116. 
Dickson,    Ex    parte,   64  Ala.    188. 

§203. 
Diggs,  Ex  parte,  52  Ala.  381.     §  148. 
Diggs  v.  Prieur,  11   Rob.  54.     §  219. 
Dillon    v.    Barnard,   21  Wall.    430. 

§269. 
Dinwiddie    (Just.)    v.    Chesterfield 

(Just),  4  Call,  556.     §282. 
Directors  (Board)  v.  Wolfley  (Ariz.), 

22  Pac.  Rep.  383.     §  94. 
District  Twp.    v.    Ind.    District,  72 

Iowa,  687.     §  62. 
Dixon  v.  Field.  10  Ark.  243.     §  204. 
v.  Judge  Second  Dist.,  4  Mo- 

286.     §  189. 
Doolittle  v.   Branford  (Selectmen), 

59  Conn.  402.     §§  238,  240, 

246. 
v.  County  Court,  28  W.  Va.  158. 

§§  47,  286,  322. 
Douglas    v.    Chatham    (Town),   41 

Conn.  211.     §257. 
Dove  v.  Ind.  Sch.  Dist.,  41  Iowa, 

689.    §§  61,  115. 
Doyle    v.    Raleigh,   89    N.   C.    133. 

§  148. 
Draper    v.    Noteware,   7    Cal.   276. 

§§  57,  60,  126. 
Drew  v.  McLin.  16  Fla.  17.     §§  179, 

248,  297.  319,  322. 
Driscoll  v.  Jones  (S.  Dak.,  1890),  44 

N.  W.  Rep.  726.   §§  142, 152, 

154. 
Dryden  v.  Swinburne,  20  W.  Va.  89. 

§  189. 
Dublin  (Dean)  v.  Dowgatt,  1  Peere 

Williams,  348,   351.     §309. 
Dubordieu   v.   Butler,  49  Cal.  512. 

§  135. 
Du  Bose,  Ex  parte.  54  Ala.  278.    §  51. 
Dubuque,   etc.    R    R,  Ex  parte,  1 

Wall.  69.     §  189. 
Dudley,  Ex  parte,  79  Ala.  187.  §  189. 
Duffitt   v.   Crozier,   30    Kans.   150. 

§189. 


XXVI 


CASES   CITED. 


Dunbar   v.    Frazer,    78    Ala.    538. 

§119. 
Duncan    v.    Louisville    (Mayor),    8 

Bush,  98.     §  109. 
Dunklin  Co.  v.  Dunklin  Dist.  Ct,  23 

Mo.  449.     §  187. 
Dunphy    v.    Belden,   57    Cal.    427. 

§204. 
Duperier  v.  Iberia  Parish  (Pol.  Jury). 

31  La.  An.  709.     §§  20,  132. 
Durant  v.  Washington  Co.  (Sup'rs), 

Woolw.  377.     §  303. 
Durham  v.  Monumental  S.  M.  Co.,  9 

Oreg.  41.    §§10,13,160. 


E. 


Early  v.  Mannix,  15  Cal.  149.     §  212. 
East  Saginaw  v.  Saginaw  Co.  Treas., 

44  Mich.  273.     §  134.    • 
Eby  v.  School  Trustees,  87  Cal.  166. 

§64. 
Echols,  Ex  parte,  39  Ala.  698.    §  107. 
Edmunds,  Ex  parte,  L.  T.  R,  25  N. 

S.  705.     §  126. 
Education  (Board)  v.   Runnels,   57 

Mich.  46.     §  16. 
Edwards  v.  United  States,  103  U.  S- 

471.     §239. 
Effingham  v.  Hamilton,  68  Miss.  523 

§§  66,  115. 
Elder  v.  Washington  Ter.,  3  Wash. 

Ter.  438.     §§17,53,54. 
Electric  R.  R.v.  Grand  Rapids  (City), 

84  Mich.  257.     §  67. 
Elkins  v.  Athearn,   2  Denio,    191. 

§187. 
Ellair  v.  Judge,  46  Mich.  496.     §  200. 
Ellicott  v.  Levy  Court,  1  Har.  &  J. 

359.     §79. 
Elliott,  Ex  parte,  33  S.  C.  602.  §  181. 
Ellis  v.  Bristol  Co.  (Com'rs),  2  Gray, 

370.    §§140,182. 
Ellison  v.  Raleigh,  89  N.   C.   125. 

§148. 
Elston,  Ex  parte,  25  Ala.  72.     §  199. 
Emory  v.  State,  41  Md.  38.    §  159. 


Enfield  v.  Hills,  2  Lev.  236.     §  268. 
Erd  v.   Bavarian  Assoc,  67   Mich. 

233.     §  168. 
Essex    Co.    R.   R.   v.   Lunenburgh 
(Town),  49  Vt.  143.     §  128. 
Etheridge  v.  Hall,  7  Port.  47.    §§  53, 

62,  190,  192,  305. 

Eufaula  (City  Council)  v.  Hickman, 

57  Ala.  338.    §§  129,  237, 303. 

Evans  v.  Hart  of  Oak  B.  Assoc,  12 

Jur.  (N.  S.)  163.     §§  74,  173. 

v.    McCarthy,    42    Kans.    426. 

§105. 
v.  Thomas,  32  Kans.  469.  §§  51. 

62. 
v.  Philadelphia  Club,  50  Pa.  St. 
107.     §§  166,  168,  173,  261, 
322. 
Eve  v.  Simon,  78  Ga.  120.    §  30. 
Everitt  v.  People,  1  Caines,  8.     §  297. 
Ewing  v.  Cohen,  63  Tex.  482.     §§  29, 
46,  51,  201,  202,  204,  205,  313. 
Excelsior,  etc.  Assoc,  v.  Riddle,  91 

Ind.  84.     §§  51,  174. 
Eyerly  v.  Jasper  Co.,  72  Iowa,  149. 
§234 

F. 

Falk  v.  Strother,  84  Cal.  544.    §  126. 
Farnsworth   v.   Boston  (City),   121 

Mass.  173.     §  235. 
v.  Kalkaska  Co.,  56  Mich.  640. 

§285. 
Farrell  v.  King,  41  Conn.  448.  §§  234, 


242. 
Far  well,  Petition  of,  2  N.  H.  123. 

§212. 
Fasnacht  v.  German  L.  Assoc,  99 

Ind.  133.     §  165. 
Fellows  v.  Tait,  14  Wis.  156.     §  194. 
Felts  v.  Memphis  (Mayor),  2  Head, 

650.     §§  142,  148,  155,  233. 
Firemen's  Ins.  Co.,  Ex  parte,  6  Hill, 

243.     §  160. 
v.  Baltimore   (Mayor),   23  Md. 

296.     §  159. 


CASES    CITED. 


XXV11 


Fish  v.  "VVeatherwax,  2  John.  Cas. 

215.     §  221. 
Fisher  v.  Charleston  (City),  17  W. 

Va.  595.     §§  130,  132,  224, 

227,  240,  245,  249,  250,  252, 

253,  255,  269,  289. 
v.  Charleston  (Mayor)  17  W.  Va. 

628.     §§  130,  132,  224,  250, 

253,254,  262,  263,291,296. 
Fisk  v.  Cuthbert,  2  Mont.  593.  §  105. 
Fitch  v.  McDiarmid,  26  Ark.  482. 

§§  51,  62. 
Flagg  v.  Palmyra  (Town),   33  Mo. 

440.     8  129. 
Fleming,  Ex  parte,  4  Hill,  581.    §  82. 
Fleming,    Ex  parte,   2  Wall.    759. 

§255. 
Fletcher  v.   Ren  f roe,  56    Ga.   674 

§103. 
Flippen,   Ex  parte,   94  U.   S.    348. 

§196. 
Floral,  etc.  Co.  v.  Rives,  14  Nev.  431. 

§203. 
Fogle  v.  Gregg.  26  Ind.   345.     §  53. 
Foote  v.  Myers,  60  Miss.  790.   §  278. 
v.  Noxubee  Co.  (Sup'rs),  67  Miss. 

156.     §111. 
Ford  v.  Cartersville  (Mayor),  84  Ga. 

213.     §§127,230. 
Foreman  v.   Murphy,    Penn.    1024. 

§212. 
Foster  v.  Redfield,  50  Vt.  285.  §  187. 

v.  White,  86  Ala.  467.     §  161. 
Fowler  v.  Pierce,  2  CaL  165.     §§  65, 

104,  105. 
Fox  v.  Whitney,  32  N.  H.  408.  §  310. 
Francisco  v.  Manhattan  I.  Co.,   36 

Cal.  283.     §  220. 
Freas  v.  Jones,  16  N.  J.  L.  358.  §  205. 
Frederick  v.  Mecosta  Cir.  Judge,  52 

Mich.  529.     §  189. 
Free  Press  Assoc,  v.  Nichols,  45  Vt. 

7.    §§  56,  102,  105,  117. 
Freeman   v.    New   Haven    (Select- 
men), 34  Conn.  406.     §  178. 
Fremont  v.   Crippen,    10  CaL  211. 

§§  1,  21,  51,  53. 


French,  Ex  parte,  100  U.  S.  1.  §  201. 
French  v.  Cowan,  79  Me.  426.  §§  140, 

143. 
Freon  v.  Carriage  Co.,  42  Ohio  St 

30.    §§  13,  49,  55,  160. 
Frey  v.  Michie,  68  Mich.  323.  §§  143, 

290. 
Frisbie  v.  Fogg,  78  Ind.  269.    §§  23, 

154. 
v.  Wythe  Co.  (Just),  2  Va.  Cas. 

92.     §  110. 
Fritz  v.   Muck,   62    How.    Pr.   69. 

§§  157,  166. 
Frost  v.  Chester  (Mayor),  5  El.  & 

Bl.  531.     §  138. 
Fuller  v.  Plainfield  Acad.   School, 

6  Conn.   532.     §§  49,   166, 

237,  269. 
Fulton  v.  Hanna,  40  CaL  278.    §  84. 
Fry  v.  Montgomery   Co.   (Com'rs), 

82  N.  C.  304.     §§  245,  298. 
v.    Reynolds,    33     Ark.     450. 

§234 


G. 


Gaal   v.   Townsend,    77    Tex.    464 

§§  148,  234a. 
Gaines  v.  Thompson,  7  Wall.  347. 

§100. 
Galbraith  v.  Green,  13  S.  &  R  85. 

§193. 
Galena  (City)  v.  Amy,  5  WalL  705. 

§130. 
Galveston,  etc.  R.  R.  v.  Gross,  47 

Tex.  428.     §§  65,  106. 
Gardner  v.  Haney,  86  Ind.  17.   §  51. 
Garland,    Ex  parte,    42   Ala.    559. 

§199. 
Garlington,  Ex  parte,  26  Ala.  170. 

§210. 
Garnett  v.  Stacy,  17  Mo.  601.  §  212. 
Garrabrant  v.  McCloud,  15  N.  J.  L. 

462.     §  206. 
Gas  Light  Co.  v.  Colliday,  25  Md.  1. 

§27. 
Gay  v.  Gilmore,  76  Ga.  725.    §  a 


xx  vm 


CASES    CITED. 


Gayle  v.  Owen  Co.  Court,  83  Ky. 

61.     §  43. 
Gee  v.  Alabama,  etc.  Co.,  13  Ala. 

579.     §  199. 
Gephard,  In  re,  1   John.   Cas.  134. 

§195. 
German  R.  Church  v.  Com.,  3  Pa. 

St.  282.     §§  169,  176. 
George's  Creek,   etc.    Co.    v.   Alle- 
ghany Co.  (Com'rs),  59  Md. 
*  255.     §§  51,  66,  87,  130,  314. 
Georgia  v.   Stanton,    6    Wall.    50. 

§61. 
Geter  v.  Com'rs,  1  Bay,  354.  §§  147, 

148,  275. 
Gibbs  v.  Bartlett,  63  Cal.  117.  §  138. 
v.   Hampden  Co.   (Com'rs),    19 

Pick.  298.     §  111. 
Giboney  v.   Rogers,   32    Ark.    462. 

§189. 
Gilbert  v.  Moody  (Idaho,  1891),  25 

Pac.  Rep.  1092.    §§  104, 105. 
v.  Niagara  Co.  (Judges),  3  Cow. 

59.     §  187. 
Gillespie  v.  Wood,  4  Humph.  437. 

§60. 
Gilman  v.  Bassett,   33  Conn.    298. 

§§  61,  62,  115. 
Glalon  v.  Fairbairn,  30  Low.  Can. 

Jurist,  323.     §  178. 
v.    Fairbairn,     31     Low.    Can. 

Jurist,  48.     §  178. 
Goff  v.   Wilson,    32  W.   Va.    393. 

§97. 
Goheen  v.  Myers,  18  B.  Mon.  423. 

§§  46,  47,  205. 
Golden  v.  Elliott,  13  Kans.  92.   §  87. 
Golden  C.  Co.  v.  Bright,  8  Colo.  144. 

§246. 
Gooch  v.  Gregory,   65   N.   C.   142. 

§§  85,  130. 
Goodell,  Ex  parte,  14  John.  Cas.  325. 

§§  124,  251. 
Goodwin   v.   Glazer,    10    Cal.    333. 

§122. 
Goolsby,    Ex    parte,   2    Grat   575. 

§209. 


Gordon    v.    Longest,    16    Pet.    97. 

§2520. 
v.   Winchester,   12   Bush,   110. 

§27. 
Gorgas  v.  Blackburn,  14  Ohio,  252. 

§§  239,  274. 
Gormley  v.  Day,  114  111.  185.   §§  66, 

75. 
Graham  v.  Norton,  15  Wall.   427. 

§217. 
v.  Parham,  32  Ark.  676.  §  218. 
v.  People,  111  111.  253.     §  189. 
Grant,  Ex  parte,  6  Ala.  91.     §  213. 
v.  Davenport  (City),  36  Iowa, 

396.     §  132. 
Grantham,   In  re,  4  D.  &  L    427. 

§247. 
Graves,  Ex  parte,  61  Ala.  381.   §  209. 
Gray     v.    Barton,    62    Mich.     186. 

§200. 
v.  Saginaw  Co.  (Cir.  Judge),  49 

Mich.  513.     §  87. 
v.  State,  72  Ind.  567.     §§  30,  93. 
Great  Western  R.  R.  v.  Queen,  1  El. 

&  Bl.  874.     §  159. 
Greathouse  v.  Jameson,  3  Colo.  397. 

§208. 
Green,  In  re,  141  U.  S.  325.     §  216. 
v.  African  M.  E.  Soc,  1  S.  &  R. 

254.     §  49. 
v.  Purnell,  12  Md.  329.     §  104. 
Greene  County  v.  Daniel,  102  U.  S. 

187.     §§  217,  218. 
Greener  v.  Moore,  6  Colo.  526.   §§  57, 

60. 
Gregg  v.  Pemberton,   53  Cal.   251. 

§§  295,  305. 
Gresham,   Ex   parte,   82  Ala.   359. 

§  187. 
Grier  v.  Shakleford,    3  Brev.    491. 

§§  184,  213,  313. 
Griffin   v.   Wakelee,   42    Tex.   513. 

§  309. 
Grigsby    v.   Bowles,   79    Tex.    138. 

§215. 
Groome  v.  Gwin,  43  Md.  572.     §  S3. 
Gulick  v.  New,  14  Ind.  9a    §  118. 


CASES    CITED. 


XXIX 


II. 


Haight    v.    Turner,    2    John.    370. 

§247. 
Haines  v.  Commonwealth,  99  Pa.  St. 
410.     §  191. 
v.  Saginaw  Co.,  87  Mich.  237. 
§64. 
Hale  v.  Haselton.  21  Wis.  320.  §  193. 

v.  Eisley,  69  Mich.  596.     §  68. 
Hale  (Com'rs  Highways)  v.  People, 

73  111.  203.     §  53. 
Hall  v.  Audrain  Co.  (Court),  27  Mo. 
329.     §  208. 
v.  Crossman,  27  Vt.  297.    §§  66, 

75,  246. 
v.  People,  57   111.  307.     §§  116, 

230. 
v.  Somersworth  (Selectmen),  39 

N.  H.  511.     §§10,115. 
v.  Steele,  82  Ala.  562.     §  60. 
v.  Stewart.  23  Kans.  396.    §§  57, 
122,  180. 
Ham  v.  Toledo,  etc.  R  R,  29  Ohio 

St.  174.     §  83. 
Hambleton    v.   Dexter  (Town),   89 

Mo.  188.     §§  253,  255. 
Hamilton  v.  State,  3  Ind.  452.  §§  127, 
230. 
v.  Tutt,  65  Cal.  57.     §  212. 
Hammar  v.  Covington  (City),  3Metc. 
(Ky.)  494.     §§  116,  229,  232. 
Hancock  v.  Perry  (Dist  Town.),  78 

Iowa.  550.     §§  115,  230. 
Hangen  v.  Albina,  etc.  Co.  (Oreg., 
1891),  28  Pac.  Rep.  244.  §  27. 
Hanlin  v.  Ind.  District,  66  Iowa,  69- 

§117. 
Hannon    v.    Halifax    (Com'rs),    89 

N.  C.  123.     §  144. 
Haralson,   Ex  parte,   75    Ala.  543. 

§199. 
Hardcastle  v.  Maryland,  etc.  R  R, 

32  Md.  32.    §  82. 
Hardee  v.  Gibbs,  50  Miss.  802.  §§222, 
233,  238,  246,  253,  255,  257, 
258,  270,  272,  304,  305. 


Hargnell  v.  Lafayette  B.  Soc,  47 

Mich.  648.     §  158. 
Harkins  v.  Sencerbox,  2  Minn.  344. 

§254. 
Harl  v.  Pottawattamie,  etc.  Co.,  74 

Iowa.  39.     §  174. 
Harmon  v.  Dreher,  1  Speer's   Eq. 

Cas.  87.     §  176. 
Harpending  v.  Haight,  39  Cal.  189. 

§93. 
Harrington  v.  Holler,  111  U.  S.  796. 
§203. 
v.   Berkshire  Co.   (Com'rs),    22 
Pick.  263.     §  116. 
Harris,  Ex  parte,  52  Ala.  87.     §§  29, 

43,  56,  143. 
Harrison    v.   Emmerson,   2  Leigh, 
764.     §  189. 
v.  Simonds,  44  Conn.  318.  §§  66, 

67,  173. 
v.   Williams,   4    D.   &  R   820. 
§§  14,  155. 
Harrison  S.  T.  v.  McGregor,  96  Ind. 

185.     §51. 
Hart  v.  Circuit  Judge,  56  Mich.  592. 

§205. 
Hartman   v.   Greenhow,   102  U.  S. 

672.     §§  62,  305,  309. 
Hartranft's  Appeal,  85  Pa.  St  433. 

§94. 
Hartshorn   v.    Ellsworth    (Ascess.), 

60  Me.  276.     §§  260,  262. 
Harwood    v.    Marshall,   9  Md.  83. 

§§  146,  274,  284,  288. 
Haskins   v.  Scott  Co.   (Sup'rs),     51 

Miss.  406.     §§  232,  269. 

Hatch  v.  City  Bank,  1  Rob.  470.  §  161. 

Hawes  v.  White.  66  Me.  305.    §  124. 

Hawkins  v.  Governor,  1   Ark.  570. 

§§  94,  99,  102. 

v.  Hardin,  35  111.  Ap.  25.    §  245. 

v.    Kercheval,    78    Tenn.    535. 

§120. 
v.   More,   3  Ark.  345.     §§  262, 
269,  319,  322. 
Hayes,  Ex  parte  (Ala..  1891),  9  South. 
Rep.  156-    §§  37,  199. 


XXX 


CASES    CITED. 


Haymore   v.  Yadkin   (Com'rs),    85 

N.  C.  268.     §§  51,  62,  314. 
Hays,  Ex  parte,  26  Ark.  510.    §§  29, 

56,  187. 
Heath,  Ex  parte,  3  Hill,  42.     §  178. 
Heckart    v.    Roberts,    9    Md.     41. 

§  232. 
Heffner  v.  Commonwealth,  28  Pa. 

St.  108.     §§  56,  229. 
Heilbron  v.  Superior  Court,  72  Cal. 

96.     §  187. 
Heine  v.  Levee  Commissioners,  19 

Wall.  655.     §  3. 
Hemphill  v.  Collins,    117    I1L   396. 

§201. 
Hempstead   v.    Underhill,   20  Ark. 

337.     §  106. 
Hempstead    County   v.   Grave,    44 

Ark.  317.     §  187. 
Hendee  v.    Cleveland,  54  Vt.  142. 

§189. 
Henderson,  Ex  parte,  84  Ala.   36. 

§189. 
Henderson,  Ex   parte,    6  Fla.  279- 

§§  203,  213. 
Hendree,   Ex    parte,   49    Ala.   360. 

§201. 
Hendricks  v.  Johnson,  45  Miss.  644. 

§§  135,  281. 
Henry,  Ex  parte,  24  Ala.  638.  §§  187, 

199. 
Henry  v.  Taylor,  57  Iowa,  72.  §§  30. 

48,  111. 

Herteman,  In  re,  73  Cal.  545.   §  190, 

Hewell  v.  Lane,  53  Cal.  213.     §  123. 

Hewitt  v.  Craig,  86  Ky.  23.     §  244. 

v.  Judge  of  Probate,  67  Mich.  1. 

§261. 
Hibernia  F.    E.    Co.   v.    Common- 
wealth,    93    Pa.     St.    264. 

§166. 
Higgins  v.    Chicago  (City),  18  111. 

276.     §  129. 
Highway  Com'rs  v.  People,  66  111. 

339.     §  57. 
v.  People,  73  III  203.     §  116. 
v.  People,  99  111.  587.     §  57. 


Hill    v.   Goodwin,   56    N.    II.    473. 

§114. 
v.    Worcester,    4    Gray,    414. 

§116. 
Hillis    v.   Ryan,   4  G.   Greene,   78. 

§135. 
Hitchcock       v.       Hampden      Co. 

(Com'rs),     131    Mass.    519. 

§116. 
Hoard,   Ex  parte,   105    U.   S.   578. 

§g  201.  220. 
Hockett  v.  State,  105  Ind.  250.    §  25. 
Hogan  v.  Alston.  9  Ala.  627.    §  199. 
Hogue    v.    Fanning,    73    Cal     54. 

§212. 
Holland  v.  State.  23  Fla.  123.    §  231. 
Holliday  v.  Henderson.  67  Ind.  103. 

§  105. 
Hollis  v.  Brandon,  1  Bos.  &  Pul.  36. 

§247. 
Hollister  v.  Lucas  Co.  Ct.  (Judges), 

8  Ohio  St.  201.     §§  189,  237. 
Hollon  Parker,  Petitioner,  131  U.  S. 

221.     §§  187,  203,  205,  240. 
Hommerich  v.  Hunter,  14  La.  An. 

225.     §  103. 
Hon  v.  State,  89  Ind.  249.     §§  108, 

134. 
Hoole    v.    Kinkead,    16    Nev.    217. 

§§  30.  31,  37,  117,  313. 
Hosier  v.  Higgins  Town  Board,  45 

Mich.  340.     §§  130,  291. 
Hough  v.  Western  T.  Co.,  1  Biss. 

425.     §  220. 
Houston  v.  People,  55  111.  398.    §  114. 
Houston  (City)  v.  Emery,  76  Tex. 

321.     §  237. 
Houston,  etc.  R.  R.  v.  Randolph,  24 

Tex.  317.     §§  254,  255. 
Hovey  v.  State,  127  Ind.  588.    §§  93, 

94. 
Howe  v.  Crawford  Co.  (Com'rs),  47 

Pa,  St.  361.     §116. 
Howell  v.    Crutchfield,  Hemp.  99. 

§189. 
Hower's  Appeal,   127  Pa,  St   134. 

§242. 


CASES    CITED. 


XXXI 


Howland  v.  Eldredge,  43  N.  Y.  457. 

§313. 
Hoxie  v.  Somerset  Co.  (Com'rs),  25 

Me.  333.     £  254. 
Hoyt,  Ex  parte,  13  Pet.  279.    §§  196, 

204,  216. 
Huckabee,  Ex  parte,  71   Ala.  427. 

§56. 
Hudmon  v.  Slaughter,  70  Ala.  546. 

§179. 
Hudson  v.  Daily,  13  Ala,  722.  §  199. 
Huff  v.  Kimball,  39  Ind.  411.   §  256. 
v.  Knapp,  5   N.  Y.  65.     §§  135, 

136. 
Huffmau    v.   Mills,   39  Kans.   577. 

§154. 
Hughes  v.  Craven  Co.  (Com'rs),  107 

N.  C.  599.     §  130. 
Hull  v.  Oneida  Co.  (Sup'rs),  19  John. 

259.     §  12G. 
v.  Reilly  (Mich..  1891),  49  N.  W. 

Rep.  869.     §  200. 
Humbert    v.    Dunn,     84    CaL    57. 

§104. 
Humboldt    Co.    v.    Churchill    Co. 

(Com'rs),  6  Nev.  30.     §§  65, 

111,  224. 
Huntington   v.  Smith,  25  Ind.  486. 

§130. 
Hurn,    Ex     parte    (Ala.,    1891),    9 

South.  Rep.  515.     §  199. 
Hurst's  Case,  1  Lev.  75.     §  195. 
Hussey  v.  Hamilton,  5   Kans.  462. 

§§  23,  24,  156. 
Hyatt  v.  Allen,  54  CaL  353.    §§  127, 

230. 


Illinois  C.  R  R.  v.  Rucker,  14  111. 

353.     §§  109,  189. 
Illinois,  etc.  Society  v.  Baldwin.  86 

111.  479.     §  168. 
Illinois  State  Hospital  v.  Higgins, 

15  111.  185.     §  18. 
Indianapolis  v.   McAvoy,   86    Ind. 

587.     §  51. 


Indianapolis,  etc.  R.  R.  v.  State,  37 

Ind.  489.     §  159. 
Ing  v.  Davey,  2  Lea.  276.     §  215. 
Ingerman  v.  State  (Indiana,  1891), 

27  N.  E.  Rep.  499.     §§  18, 

224,  257. 
Insurance  Co.  v.  Comstock,  16  Wall. 

258.     §§  205.  216. 
v.  Wilder,  40  Kans.  561.     §§  30, 

37. 
Ipswich,   Inhabitants  of,   Petition- 
ers, 24  Pick.  343.     §  116. 
Iron  Companies  v.  Pace,  89  Tenn. 

707.     §79. 
Irving  v.  Askew,  20  L.  T.  R  (N.  S.) 

584.     §  223. 


Jack  v.  Moore,  66  Ala.  184.    §  126. 
Jameson    v.    Hudson,   82  Va.   279. 

§146. 
Jamison  v.  Reed,  2  G.  Greene,  394. 

§194. 
Jansen  v.  Davison,  2  John.  Cas.  72. 

§201. 
Jared  v.  Hill,  1  Blackf.  155.     §  189. 
Jayne  v.  Drorbaugh,  63  Iowa,  711. 

§178. 
Jefferson  Co.  v.   Arrghi,   51   Miss. 

667.     §  130. 
Johnes  v.  Auditor  of  State,  4  Ohio 

St.  493.     §  263. 
Johnson,   Ex    parte,    3    Cow.   371. 

§§  33,  187. 
Johnson  v.  Campbell,  39  Tex.  83. 
§  135. 
v.  Dick,  69  Mich.  108.     §§  212, 

242a. 
v.  Glascock,  2  Ala.  519.     §  189. 
v.  Lucas,  11  Humph.  306.    §  60. 
v.  Mann,  77  Va.  265.     §  148. 
v.  Smith,  64  Ind.  275.     §§  134, 

253. 
v.  Ward.  82  Ala.  486.     §  67. 
Johnston    v.    State,    128    Ind.    16. 
§§  181,  182,  185. 


xxxn 


CASES    CITED. 


Joint  F.  H.  School  v.  Green  Grove 

(Town),  77  Wis.  532.    §  114. 
Jones    v.    Allen,    13    N.    J.  *L.   97. 

§§  204,  205. 
v.  Jefferson  City,  66  Tex.  576. 

§239. 
v.  Moore  Co.  (Com'rs),  106  N.  C. 

436.     §§  40,  119. 
Judd  v.  Driver,  1  Kans.  455.    §§  61, 

213. 
Justice    and    Jones,    1    Barn.   280. 

§204. 

K. 

Kaine  v.  Commonwealth,  101  Pa. 

St.  490.     §§  51,  53. 
Karcher  v.    Supreme    Lodge,    1S7 

Mass.  368.     §  169. 
Kaye  v.    Kean,   18    B.    Mon.   839. 

§309. 
Keller  v.  Hyde,  20  Cal.  593.     §  135. 
Kelley  v.    Milan,   127    U.    S.    139. 

§129. 
Kelly    v.    Edwards.    69    Cal.    460. 

§  143. 
Kemerer    v.     State,    7    Neb.    130. 

§§126,  222,255,291. 
Kendall   v.   Lassiter,   68  Ala.    181. 

§201. 
v.  Stokes,  3  How.  87.     §  311. 
v.  United  States,   12  Pet.  524- 

§§1,  11,  62.92,100,101,213, 

217,  219. 
Kennebunk  T.  Bridge  (Proprietors), 

Petitioners,    11     Me.     263. 

§  116. 
Kennedy  v.  Board  of  Education,  82 

Cal.  483.     §§  16,  22. 
v.  Woolfolk,  1  Overt.  453.   §  187. 
Kent  v.   Dickiuson,   25  Grat.  817. 

§203. 
Kentucky  v.  Denison,  65  U.  S.  66. 

§§  47,  61,  62,  219. 
Keokuk  (City)  v.  Merriam,  44  Iowa, 

432.     §§  109,  154,  155. 
Kidder  v.  Morse,  26  Vt  74     §  254. 


Kimball  v.  Lamprey,  19  N.  H.  215. 

§§  23,  154. 
v.  Union  Water  Co.,  44  CaL  173. 

§160. 
King,  Ex  parte,  27  Ala.  387.     §  199. 
King  v.    See  Rex  v. 
King    v.    Hampton,   3    Hayw.   59. 

§215. 
King  and  Owen,  Skin.  669.    §§  265, 

266. 
King  William  (Just.)  v.  Munday,  2 

Leigh,  165.     §§  55,  62. 
Kirk    v.    Cole,   3    Mac  Arthur,    71- 

§212. 
Kisler    v.   Cameron,    39    Ind.   488. 

§§  178,  183. 
Kleiber  v.   McManus,   66  Tex.   48. 

§§  204,  261. 
Klein  v.  Smith  Co.  (Com'rs),  54  Miss. 

254.     §§  130,  314. 
Klokke    v.    Stanley,    109    111.    192. 

§§  66,  75. 
Knarr's  Petition,   127   Pa.  St.  554. 

§§  188,  204. 
Knight    v.    Ferris,    6    Houst.    283. 

§§  234a,  269. 
Knox  Co.  (Board  Com'rs)  v.  Aspin- 

wall,  24  How.  376.     §§  225, 

252. 
Koon,  Ex  parte,  1  Denio,  644.  §§  187, 

201. 
Koonce  v.  Jones  Co.  (Com'rs),  106  N. 

C.  192.     §  111. 


Labette    Co.    (Com'rs)    v.    United 

States,  112 U.S.  217.  §§217. 

218,  234,  235,  237. 
Ladd  v.   Tudor    3  W.   &  M.   325. 

§  219. 
Lafayette  (City)  v.  State,  69  Ind.  218. 

§§  113,  246,  322. 
Lagrange  Co.  (Com'rs)  v.  Cutler,  7 

Ind.  6.     §  111. 
Laird  v.  Abrahams,  15  N.  J.  L.  22. 

§212. 


CASES    CITED. 


XXXU1 


Lake  v.  King,  16  Nev.  215.    §  196. 
Lake  Co.  (Com'rs)  v.  State,  24  Fla. 

263.     §  221. 
Lamar    v.    Wilkins.    28    Ark.    34. 

§§  178,  241. 
Lamb    v.   Lynd,    44    Pa.    St.    336. 

§113. 
Lamphere  v.  Grand  Lodge,  47  Mich. 

429.     §§  158, 166. 
Lancaster  Co.  (Com'rs)  v.  State.  13 

Neb.  523.     §  126. 
Langdon,  etc.  R  R,  In  re,  45  Up. 

Can.  Q.  B.  47.     §  68. 
Lansing  v.  City  Treasurer,  1  Dill. 

523.     §  218. 
Larkin  v.  Harris,  36  Iowa,  93.    §§  57, 

242«. 
Lavelle  v.  Soucy,  96  111.  467.     §  255. 
Lawrence,  Ex  parte,  34  Ala.   446. 

§  189. 
Lawrence  v.  Hanley,  84  Mich.  399. 
§155. 
v.  Ingersol,  88  Tenn.  52.     §  142. 
Layton  v.  State,  28  N.  J.  L.  575. 

§§  304,  305. 
Leach  v.  Fayetteville  (Com'rs),  84 

N.  C.  829.     §  130. 
Lee  v.  Harper,  90  Ala.  548.    §  199. 
Lee  County  v.  State,  36  Ark.  276. 
§§~70,  224,  232,  257,  270, 294, 
305. 
Leech    v.    Harris,   2    Brewst.    571. 

§166. 
Leeds  v.  Atlantic  City,  52  N.  J.  L. 

332.     §§  143,  150. 
Legg  v.  Annapolis  (City),  42  Md. 
203.     §§  10,  43,  51,  277,  284. 
Leigh  v.  State,  69  Ala.  261.     §§  51, 

56,  61,  62,  178. 
Le  Roux  v.  Judge,  45   Mich.  416. 

§  222. 
Le  Roy  v.   Slatford,   5    Mod.   316. 

'  §  281. 
Levy  v.  Inglish,  4  Ark.  65.     §§  212, 

269,  274. 
Lewis  v.  Barclay,  35  Cal.  213.  §§  187, 
313. 


Lewis  v.  Henley,  2  Ind.  332.     §  223. 
v.  Marshall    Co.    (Com'rs),    16 
Kans.  102.    §§  178,  179,  185. 
v.  Whittle,  77  Va.  415.     §§  10, 
49,  53,  146. 
Life,  etc.  Ins.  Co.  v.  Adams,  9  Pet. 
571.    §§  123,  196,  204, 250. 
v.  Wilson,  8  Pet.  291.     §§  189, 
216. 
Linden  v.  Alameda  Co.  (Sup'rs),  45 

Cal.  6.     §  229. 
Lindsay  v.  Circuit  Judge,  63  Mich. 
735.     §  200. 
v.  Luckett,  20  Tex.  516.     §  146. 
Lindsey  v.  Auditor  of  Ky.,  3  Bush, 

231.    §§  105,  238. 
Liquidation  (Board  of)  v.  McComb, 

92  U.  S.  531.    §  98. 
Little  v.  Morris,  10  Tex.  263.   §§  187, 

201. 
Livingston  v.  McCarthy,  41  Kans. 
20.    §  242o. 
v.  Trinity  Church  (Rector),  45 
N.  J.  L  230.     §§  173.  176. 
Lloyd  v.  Brink,  35  Tex.  1.     §  189. 
v.  Chambers,     56    Mich.     236. 
§201. 
London  v.  Lynn,  1  H.  Black.  206. 
§303. 
v.  Swallow,  2  Keb.  76.    §  265. 
Long,  In   re,  14  L.  J.   Q.   B.   146. 

§297. 
Long  v.  State,  17  Neb.  60.     §§  179, 

253,  270,  289. 
Long's  Case,  5  Coke.  121.     §  274. 
Long  Island  R  R..  In  re,  19  Wend. 

37.     §  166. 
Loring,  Ex  parte,  94  U.  S.  418.   §  196. 
Loubat  v.   Le  Roy,   40  Hun,   546. 

§169. 
Louis  v.  Brown  Township,  109  U.  S. 

162.     §  315. 
Louisiana  v.  Jumel,  107  U.  S.  711. 
§§  89,  98. 
v.  Pilsbury,  105  U.  S.  278.   §  20. 
Louisville  (City)  v.  Kean,  18  B.  Mon. 
9.     §§40,119,237. 


XXXLV 


CASES    CITED. 


Louisville  G.  Co.  v.  Citizens'  G.  Co., 

115  U.  S.  683.    §27. 
Louisville  Ind.  School  v.  Louisville 

(City),  88  Ky.  584.     §  208. 
Louisville,   etc.    R    R  v.  State,  25 

Ind.  177.     §  53. 
Low  v.  Mills,  61  Mich.  35.     §  200. 
Lowe,  Ex  parte,  20  Ala.  330.  §§  199, 

204. 
Lowe  v.  Phelps,  14  Bush,  642.  §  123. 
Lowell   v.    Boston,   111   Mass.   454. 

§27. 
Loy,  Ex  parte,  59  Ind.  235.     §  250. 
Luce  v.  Dukes  Co.  (Board  of  Educ), 

153  Mass.  108.    §  179. 
v.  Mayhew,  13  Gray,  83.  §§  178, 

179,  242«. 
Ludlum  v.  Fourth  Dist.   Court,    9 

Cal.  7.     §  187. 
Lumbard  v.   Stearns,   4  Cush.   60. 

§27. 
Lusk,  Ex  parte,  82  Ala,  519.  §§  143, 

148. 
Lusk  v.  Perkins.  48  Ark.  238.    §  109. 
Lutterloh      v.      Cumberland      Co. 

(Coni'rs),     65     N.     C.    403. 

§§  130,  251,  252,  259. 
Lyman  v.    Martin,    2    Utah,    136. 

§§  178,  224, 253, 270,  272,  290. 
Lynch,  Ex  parte,  2  Hill,  45.     §§  55, 

136. 
Lynch,  Ex  parte,  16  S.  C.  32.     §§  31, 

57,  65,  104,  127. 
Lyon  v.    American  Screw   Co.,  16 

R  I.  472.     §  161. 
v.  Rice,  41  Conn.  245.     §§  229, 

234a. 

M. 

McAleer  v.  Clay  County,  42  Fed.  R 

66.-,.     §  314. 
McBane  v.  People,  50  111.  503.    §  61. 
McBride  v.  Grand  Rapids  (City),  47 

Mich.  236.     £  136. 
v.  Grand  l,*apids(Com.  Council). 

32  Mich.  360.     §  21.1 


McCauley  v.   Brooks,   16    Cal.    11. 

§§  65,  104. 
McClung  v.  Silliman,  6  Wheat.  598. 

§219. 
McConihe    v.    State,    17  Fla.    238. 

§§  65,  138.  221,  230. 
McCrary  v.   Beaudry,  67  Cal.  120. 

§§  27,  262. 
McCreary   v.  Rogers,  35  Ark.   298. 

§208. 
McCoy   v.   Harnett    Co.    (Just.),    4 

Jones,  180.     §§  263,  282. 
v.  Harnett  Co'.  (Just),  5  Jones, 

265.     §  256. 
McCullough,  Re,  35  Up.  Can.  Q.  B. 

449.     §  178. 
McCullough   v.   Brooklyn  (Mayor), 

23  Wend.  458.     §§  53,  109. 
McDearmid  v.  Fitch,  27  Ark.   106. 

§155. 
McDonald  v.  Ross-Lewin,  29  Hun- 

87.     §  168. 
McDuffie    v.    Cook,    65    Ala.    430. 

§§  31,  118. 
McGee  v.  State,  103  Ind.  444.   §  154. 
Mclntire  v.  Wood,  7  Cranch,  504. 

§217. 
McKenzie  v.  Ruth,  22  Ohio  St.  377. 

§§  253,  255. 
Mackey,   Ex   parte.    15   S.   C.   322. 

§§  51.  53,  62,  77, 78, 178, 184, 

185,  241. 
Maclean  v.  Speed,  52  Mich.  257.  §  200. 
McLeod   v.   Scott  (Oreg.,  1891),  26 

Pac.  R  1061.    §  40. 
McMahon  v.    San    Mateo    County 

(Sup'rs),  46  Cal.  214.    §  111. 
McMillen   v.   Smith,   26    Ark.   613. 

§187. 
Macoupin  Co.  Court  v.  People,  58 

111.  191.     §  222. 
McQueen  v.  Middletown  M.  Co.,  16 

John.  5.    §  177. 
.Madison   (City)   v.  Korbly,  32   Ind. 

71.     §  148. 
Madison  (County  Court)  v.  Alexan- 
der, Walker,  523.     §  111. 


CASES    CITED. 


XXXV 


Madison  (County  Court)  v.  People, 

58  111.  45*6.     §§  65,  68,  270. 
Maddox  v.  Graham,  2  Mete.  (Ky.) 
56.     §§   129,  225,  232,   289, 
290,  303. 
Maddox     v.    Neal,    45     Ark.     121. 

§§  57.  75. 
Magee  v.  Calaveras  County  (Sup'rs), 

10  Cal.  376.    §  182. 
Magruder   v.    Swan,     25   Md.    173. 

§93. 
Maher  v.  State  (Neb.,  1891),  49  N.  W. 

Rep.  436.     §  115. 
Mahone,  Ex  parte,  30  Ala.  49.  §§  61, 

204. 
Malcom    v.    Rogers,    5    Cow.    188. 

§34. 
Manaton's  Case,  Ray.  365.     §  283. 
Mann  v.  Illinois,  94  U.  S.  164.     §  £5. 
Mannix    v.    State,    115    Ind.    245. 

§143. 
Manns    v.    Givens,    7    Leigh,   689. 

§§47,  111. 
Manor  v.  McCall,  5  Ga.  522.     §§  41, 

129,  186,  188. 
Mansfield    v.    Fuller,   50    Mo.   338. 

§  130. 
Many,  Ex  parte,  14  How.  24.     §  29. 
Marathon  (Town)  v.  Oregon  (Town), 

8  Mich.  372.     §  114. 
Marbury  v.  Madison,  1  Craneh,  137. 

§§  29,  92,  99,  101,  216. 
Marshall  v.  Clark,  22  Tex.  23.     §  89. 
Marshall  v.   Sloan,  35    Iowa,  445. 

§§  51,  53. 
Martin,  Ex  parte,  5  Ark.  371.  §  212. 
Martin  v.  Ell  wood,   35  Minn.  309. 
§115. 
v.  Ingham,  38  Kan.  641.     §  96. 
v.  Tripp,  51  Mich.  184.    §11"). 
Mason   v.   School   District,   20  Vt. 

487.     §§78,241. 
Mason  Co.   (Sup'rs)  v.   Miuturn,  4 

W.  Va.  300.     §  186. 
Mau  v.  Liddle,  15  Nev.  271.     §  111. 
Mauran  v.  Smith,  8  R.  I.  192.    §  94. 
Maxey  v.  Mack,  30  Ark.  472.    §  125. 


Maxton  Co.  (Com'rs)  v.  Robeson  Co. 
(Com'rs),    107    N.    C.    335. 
§119. 
Maxwell  v.    Burton.   2  Utah,  595. 
§65. 
v.  State,  40  Md.  273.     §  127. 
Mayor  v.  Lord,  9  Wall.  409.   §§  218, 

237. 
Meadows  v.  Nesbit,  80  Tenn.  486. 

§115. 
Medberry  v.  Collins,   9  John.  345. 

§192. 
Medical,  etc.  Soc.  v.  Weatherly,  75 
Ala.  248.     §§  49,   157,   166, 
261. 
Memphis,  etc.  Co.  v.  Pike,  9  Heisk. 

697.     §§'  54,  160. 
Memphis  (Merchants)   v.   Memphis 

(City),  9  Baxt  76.     §218. 

Menard  v.  Shaw,  5  Tex.  334.     §  60. 

Mendon  (Inhabitants)  v.  Worcester 

County.  10  Pick.  235.  §116. 

Merced  Min.  Co.  v.  Fremont,  7  Cal. 

130.     §  201. 
Meredith  v.  Supervisors,  50  Cal.  433. 

§143. 
Metsker    v.    Neally,  41    Kan.    112. 

§148. 
Meyer  v.  Dubuque  (City),  43  Iowa, 
592.     £§270,272,294. 
v.  Porter,   65  Cal.   67.     §§  129, 
135. 
Michigan  (City)  v.  Roberts.  34  Ind. 

471.     §  110. 
Michigan   C.  R.  R.  v.  Tuscola  Co. 
(Prob.  Judge),  48  Mich.  638. 
§200. 
Middleton  v.  Low,  30  Cal.  596.   §  93. 
Middleton's  Case,  Dyer,  333.     §  137. 
Miller  v.  Black,  128  U.  S.  50.     §  101. 
v.  Tucker  Co.  Ct.,  34  W.  Va. 
285.     §§201.204. 
Milliken      v.    Weatherford     (City 
Coun.),  54  Tex.  388.     §§  51, 
148,  290. 
Mills    v.   Brevoort,   77    Mich.   210. 
8  200. 


XXXVI 


CASES    CITED. 


Mills  Publishing  Co.  v.  Lavrabee.  78 

Iowa,  97.     §  89. 
Milner,  Ex  parte,  6  Eng.  L.  &  Eq. 

371.     §§  45,  187. 
Miltenberger  v.  St.  Louis  Co.  Court, 

50  Mo.  172.     g  187. 
Mississippi  v.  Durham,  15  Dist.  Col. 

235.     §  89. 
Mitchell  v.  Board  man,  79  Me.  469. 

§§  75. 229. 
v.  Hay,  37  Ga.  581.     §  123. 
v.  Huron  Co.  Judge,  53  Mich. 

541.     §  200. 
v.  Speer,  39  Ga.  56.     §  135. 
Mixer  v.  Manistee  Co.  (Sup'rs),  26 

Mich.  423.     §  40. 
Mobile,  etc.  Co.  v.  Cleveland,  76  Ala. 

321.    §§  39,  40,  118. 
Mobile,  etc.  R.  R.  v.  People,  132  111. 

559.     §  56. 
Mobile  &  O.   R.  R.    v.  Wisdom,  5 

Heisk.  125.     §§  13,  51,  53, 

57,  159. 
Moiles    v.   Watson,   60    Mich.   415. 

§143. 
Montague    (Lord)    v.    Dudman,    2 

Ves.  Sr.  396.     §§  3,  309.  312. 
Montgomery,  Ex  parte,  24  Ala  98. 

§  199. 
Monroe  Co.  v.  Lee  Co.,  36  Ark.  378. 

§§  70,  222. 
Monroe  Co.  (Sup'rs)  v.  State,  63  Miss. 

135.     §  111. 
Moon  v.  Cort,  43  Iowa,  503.     §§  116, 

229. 
v.  Welford,  84  Va.  34.     §  196. 
Mooney  v.  Edwards,  51  N.  J.  L.  479. 

§§  29,  31,  186,  187,  212. 
Moore  v.  Muse,  47  Tex.  210.     §  84. 

v.  State,  72  Ind.  358.     §  212. 
Morgan,  Ex  parte,  30  Ala.  51.    §  199 
2  Chit  250.     §§  187,  201. 
114  U.  S.  174.     §  189. 
Morgan  v.  Commonwealth,  55  Pa. 

St.  456.     §  129. 
v.  Fleming,    24    W.     Va.    186. 

§§  285,  286. 


Morgan   v.   Pratt  Co.  (Convrs),  24 

Kans.  71.     §  179. 
Morley    v.    Power,    73    Tenn.   691. 

§§  10,  47,  115,  313. 
Morris,    Ex    parte,    11    Grat.    292. 

§§  56,  212,  306,  309. 
Morris  v.  State,  94  Ind.  565.     §  294. 
v.  Womble,   30  La.   An.    1312. 

§§  123,  228. 
Morton   v.   Comptroller-General,  4 

Rich.  (N.  S.)  430.     §§  46,  57, 

65,  104,  227,  270,  273,  313. 
Moses    v.   Kearney,   31    Ark.   261. 

§230. 
Mossy  v.  Rains,  25  La.  An.  623.    §  66. 
Mottu    v.    Primrose,   23    Md.    482. 

§§  165,  225,  237. 
Mount  Moriah  C.  Assoc,  v.  Common- 
wealth,   81     Pa.     St.     235. 

§159. 
Mulroy  v.  Knights  of  Honor.  28  Mo. 

Ap.  463.     g§    166,  168,  169. 
Munkers  v.  Watson,   9  Kans.  668. 

§189. 
Murphy  v.  Rceder  T.  Treas.,  56  Mich. 

505.     §  285. 
v.  Smith,  49  Ark.  37.     §  135. 
Murray  v.  Stevens,    110  Mass.   95. 

§160. 
Myers  v.  Chalmers,   60  Miss.   772. 

§182. 
v.  State,  61  Miss.  138.    §  228. 
Myra  Clarke  Whitney,  Ex  parte,  13 

Pet.  404.     §  196. 

E". 

Nabor,   State  ex  reL,   7  Ala.   459. 

§199. 
i  Napa  (City)  v.  Rainey,  59  Cal.  275. 

§57. 
Napa  V.  R.  R.  v.  Napa  Co.  (Sup'rs), 

30  Cal.  435.     §  34. 
Napier  v.  Poe,  12  Ga.  170.    §§  24,  51, 

313. 
Nash,  Ex  parte,  15  Q.  B.  92.     §§  42, 

43. 


CASES    CITED. 


XXX  Vll 


Nash  v.  Page,  80  Ky.  539.     g  25. 
Needham  v.  Thresher,  49  Cal.  392. 

§135. 
Nelson   v.   Edwards,   55  Tex.   389. 

§§  148,  154. 
Neuse,    etc.     Co.    v.     New    Berne 

(Com'rs),  6  Jones,  204.  §  281. 
Neuse  N.  Co.  v.  Newbern  (Com'rs), 

7  Jones,  275.     §  75. 
New  Haven,  etc.  R.  R.  v.  State,  44 

Conn.  376.     §§  88,  159,  268, 

285,  304,  305. 
New  Orleans  G.  Co.  v.  Louisiana  L. 

Co.,  115  U.  S.  650.     §  27. 
Newman,  Ex  parte,  81   U.  S.    152. 

§§  216,  232,  270,  291,  313. 
Newman  v.  Scott  Co.  (Just.),  1  Heisk. 

787.     §  290. 
Newport  (City)  v.  Berry,  80  Ky.  354. 

§§  30,  40,  313. 
Nichols  v.  Comptroller,  4  Stew.  & 

Port.  154.     §  104. 
Noble  Co.  (Com'rs)  v.  Hunt,  33  Ohio 

St.  169.     §§  48,  111,  290. 
Nohro,   Ex  parte,   1   B.  &  C.  267. 

§247. 
Norris  v.  Baltimore  (City),  44  Md. 

598.     g§  130, 135. 
v.  Irish  L.  Co.,  8  El.  &  Bl.  512. 

§160. 
North,  Ex  parte,  49  Ala.  385.  §§  199, 

201. 
North  P.  etc.  R.  R.  v.  Gardner,  79 

Cal.  213.     §  123. 
Northington,  Ex  parte,  37  Ala.  496. 

§189. 
Northwestern,  etc.,  R  R.  v.  Jenkins, 

65  N.  C.  173.     §  103. 
Norton  v.  Dyersburg,  127  U.  S.  160. 

§129. 


o. 


Oakes  v.  Hill,  8  Pick.  47.     §§  22,  82, 

83. 
Oglesby   v.  Sigman,   58  Miss.   502. 

§§  179,  182,  185. 


Ohio    v.   Wood,  22    Ohio    St.    537. 

§212. 
Ohio,  etc.   R.   R.  v.   Wyandot  Co. 

(Com'rs),   7    Ohio  St.   278. 

§82. 
Ohio  &  M.  R  R.  v.  People,  120  111. 

200.     §§  31,  75,  76,  164. 
v.  People,  121  111.  483.     §  51. 
Oliver  v.  Hopkins,  144  Mass.   175. 

§169. 
Olmstead      v.      Morris     Aqueduct 

(Prop'rs),  47  N.   J.   L.   311. 

§27. 
Olney  (City)  v.  Harvey,  50  111.  453. 

§130. 
Olsen  v.  Muskegon  Cir.  Judge,  49 

Mich.  85.     §  201. 
O'Neal  v.  Kelly.  72  Ala.  559.     §  201. 
Oneida  C.  P.  Judges  v.  People,  18 

Wend.  79.     §§  11,  187,  196, 

197,  204,  313. 
Opdyke,  Ex  parte,  62  Ala.  68.  §  187. 
Orange  (Town)  v.  Bill,  29  Vt.  442. 

§212. 
Orosco    v.    Gagliardo,   22    Cal.  83. 

§220. 
Oroville,  etc.  R.  R  v.  Plumas  Co.,  37 

Cal.  354.     §  223. 
Ortman  v.  Dixon,  9  Cal.  23.     §  187. 
Osage  Valley,  etc.  R.  R.  v.  Morgan 

Co.  Ct,  53  Mo.  156.     §  128. 
Osborn  v.  Clark,  1  Ariz.  397.    §  187. 
Ostrander,  Ex  parte,  1   Denio,  679. 

§313. 
Ottawa  (City)  v.  People.  48  111.  233. 

§§  51,  52,  53,  116,  228,  230. 
Ottawa  Co.  (Sup'rs)  v.  Auditor  Gen- 
eral, 69  Mich.  1.     §  89. 
Otto  v.  Journeymen's,  etc.  Union, 

75  Cal.  308.     §§  157,  166. 

P. 

Pacheco  v.  Beck.  52  Cal.  3.     §  102. 
Page    v.   Clopton,     30    Grat.     415. 
§§  190,  201. 
v.  Hardin,  8  B.  Mon.  648.     §  47. 


xxxvm 


CASES   CITED. 


Paine,  Ex  parte,  1  Hill,  665.    §§  170, 

173. 
Palmer  v.    Hartford"  (Village),    73 

Mich.  96.     §  40. 
v.  Jones,  49  Iowa,  405.     §  296. 
v.  Stacy,  44  Iowa,  340.     §§  53, 

66,  130,  225. 
Parker,   Ex  parte,   120  U.   S.   737. 

§§  46,  203. 
Parker  v.    Hubbard,   64  Ala.  203 

§84. 
v.  Portland,  54  Mich.  308.   §§  31, 

40,  119. 
Parkes,  Ex  parte,  9  Dowl.  614.  §  73. 
Parkinson's  Case,  3  Mod.  265.  §  175. 
Parrott    v.    Bridgeport    (City),    44 

Conn.  180.     §§  16,  21. 
Patrick  (Dr.),  Case  of,  1  Keb.  286, 

833 ;  2  Keb.  65 ;  1  Lev.  65. 

§175. 
Patterson    v.    Vail,   43   Iowa,    142. 

§§  116,  242a. 
Peabody  v.  Boston  School  Com.,  115 

Mass.  383.     §§  140,  313. 
Pearsons,    Ex    parte,    1    Hill,   655. 

§119. 
Pearsons  v.  Ranlett,  110  Mass.  118. 

§  135. 
Peafs  Case,  6  Mod.  229.     §  43. 
Peck  v.  Booth.  42  Conn.  271.    §§  51, 

229. 
v.  Waddell,   17    Ohio   St.    271. 

§179. 
Pees  v.    Leeds  (Mayor),   Stra.  640. 

g§  237,  292. 
Peet    v.   Maccabees,   83    Mich.   92. 

§168. 
Pegram  v.  Cleveland  Co.  (Com'rs), 

64  N.  C.  557.    §  129. 
v.   Cleveland  Co.   (Com'rs),  65 

N.  C.  114.     §'240. 
Peik  v.  Chicago,  etc.  R.  R.,  94  U.  S. 

164.     §  25. 
Pender  v.  Herle,  3  Bro.  P.  C.  505. 

§304. 
Pennsylvania    Co.,   Ex    parte,    137 
U.  S.  451.     §§  203,  220. 


Pensacola  T.  Co.  v.  Western  U.  T 

Co.,  96  U.  S.  1.     §  25. 
People  v.  Alameda  Co.  (Sup'rs),  45 

Cal.  395.     §§  280,  285,  290. 
v.  Albany  (Sup'rs),  12  John.  414. 

§§  37,  312. 
v.  Albany,  etc.  R.  R.,  24  N.  Y. 

261.     §§  27a,  159. 
v.  Allegan  Cir.  Judge,  29  Mien. 

487.     §§  10,  31,  39,  201. 
v.  American  Institute,  44  How. 

Pr.  468.     §  168. 
v.  Anshei  C.  H.  Cong.,  37  Mich. 

542.     §§  49,  170. 
v.  Anthony,  129  111.  218.    §  190. 
v.  Ashbury,  46  Cal.  523.     §  127. 
v.  Attorney-General,  41    Mich. 

728.     §  33. 
v.  Auditors  (State),  42  Mich.  422. 

§105. 
v.  Austin,  46  Cal.  520.     §§  134, 

242a. 
v.  Bacon,  18  Mich.  247.    §§  201. 

214,  23S. 
v.  Baker,  35  Barb.  105.     §§  255, 

274,  285,  286,  291,  293,  294, 

315. 
v.  Barnes,  66  Cal.  594.     §  212. 
v.  Barnett  (Sup'rs),  91  111.  422. 

§§  297,  302. 
v.  Barton  (Assessors),  44  Barb. 

148.     §§  127,  252. 
v.  Batchellor,    53     N.    Y.    128. 

§§  65,  269. 
v.  Bay  Co.  Cir.  Judge,  41  Mich. 

326.     §  200. 
v.  Bell,  4  Cal.  177.     §  126. 
v.  Benevolent  Society,  3  Hun. 

361.     §  168. 
v.  Bennett,  54  Barb.  480.    §  127. 
v.  Bissell,  19  111.  229.     §  94. 
v.  Bloomington   (City),   63    111. 

207.     gg  34,  1 16,  230,  237. 
'  v.  Board  of  Police.  75  N.  Y.  38. 
§120. 
v.  Board   of  Police,   107  N.  Y. 
235.     §§  51,  290. 


CASES   CITED. 


XXXIX 


People  v.  Board  of  Trade,  80  111.  134. 

§49. 
v.  Booth,  49  Barb.  31.    §  56. 
v.  Branch  Cir.  Judge,  1  Doug. 

(Mich.)  319.    §  51. 
v.  Brennan,  39  Barb.  522.  §  109. 
v.  Brennan,  39  Barb.  651.     §  32. 
v.  Brennan,  45  Barb.  457.  §  153. 
v.  Brinkerhoff,    68  N.  Y.    259. 

§§  111,  237. 
v.  Brooklyn    (City),    1    Wend. 

318.     §  56. 
v.  Brooklyn  (City  Council),  77 

N.  Y.  503.     §§  79,  280. 
v.  Brooklyn   (Com.   Coun.),    22 

Barb.  404.     §  230. 
v.  Brooklyn  (Pres.),  13  Wend. 

130.    §304. 
v.  Brooks,  16  Cal.  11.     §  93. 
v.  Brooks,  57  111.  142.     §  260. 
v.  Brown,  55  N.  Y.  180.    §§  76, 

134. 
v.  Budd,  117  N.  Y.  1.    §  25. 
v.  Buffalo  Co.  (Com'rs),  4  Neb. 

150.     §  117. 
v.  Buffalo  Co.  (Com'rs),  6  Neb. 

454.     §  126. 
v.  Burrows,  27  Barb.  89.    §  126. 
v.  Cairo  (City  Council),  50  111. 

154.     §  237. 
v.  Canal  Appraisers,  73  N.  Y. 

443.     §  109. 
v.  Carr,  86  N.  Y.  512.     §  102. 
v.  Cass  Cir.  Judge,  39  Mich.  407. 

§200. 
v.  Central,   etc.   Co.,   41    Mich. 

166.    §§  53,  163. 
v.  Central  P.  R  R,  62  Cal.  506. 

§266. 
v.  Champion,  16  John.  61.  §  237. 
v.  Chapin,  104  N.  Y.  96.     §§  62, 

87,  314. 
v.  Chenango    (Just),    1    John. 

Cas.  179.     §  189. 
v.  Chenango    Co.    (Sup'rs),    11 

N.  Y.  563.    §§  55,  56,  111. 


People  v.  Chenango  Co.  (Sup'rs),  8 

N.  Y.  317.    §  79. 
v.  Chicago,  53  111.  424.    §  82. 
v.  Chicago   (City),  25  Ilk  48a 

§246. 
v.  Chicago  (Mayor),  51  HL  17. 

§253. 
v.  Chicago,  etc.  R  R,  55  IIL  95. 

§50. 
v.  Chicago,  etc.,  RR,  67111. 118. 

§§  158,  159. 
v.  Circuit  Judge  Third  Dist,  19 

Mich.  296.     §  205. 
v.  Clark  Co.  (Sup'rs),  50  IIL  213. 

§§  55, 130. 
v.  Cline,  63  111.  394.    §  114. 
v.  Collins,  7  Johns.  549.     §  121. 
v.  Collins,  19  Wend.  56.    §§  116, 

230,  238. 
v.  Colorado  C.    R.  R,  42  Fed. 

Rep.  638.     §  66. 
v.  Columbia  Co.  (Sup'rs),  67  N. 

Y.  330.     §  126. 
v.  Columbia    Co.     (Sup'rs),    10 

Wend.  363.    §  129. 
v.  Commissioner  S.  Land  Office, 

23  Mich.  270.     §  106. 
v.  Contracting  Board,  46  Barb. 

254.     §§  78,  117. 
v.  Contracting  Board,  27  N.  Y. 

378.     §117. 
v.  Contracting  Board,  33  N.  Y. 

382.     §  117. 
v.  Cook,  39  Cal.  658.    §  135. 
v.  Crane,  60  Cal.  279.     §  190. 
v.  Croton  Aqueduct  Board,  26 

Barb.  240.     §  56. 
v.  Croton  Aqueduct  Board,  49 

Barb.  259.     §§  66,  117. 
v.  Crotty,  93  111.  180.     §§  60,  234 . 

256. 
v.  Cullom,  100  111.  472.    §  94. 
v.  Cummings,    72    N.   Y.    433. 

§165. 
v.  Curtis,  41  Mich.  723.     g§  23, 

124. 


xl 


CASES   CITED. 


People  v.  Curyea,  16  HI.  547.    §  83. 
v.  Davis,  93  111.  133.     §§  56, 116, 

255,  256,  262,  269. 
v.  De  La  Guerra,  43   CaL  225. 

§204 
v.  Delaware  C.  Pleas.  (Just),  1 

John.  Cas.  181.     §  195. 
v.  Delaware  Co.  (Sup'rs),  45  N. 

Y.  196.     §§  111,  126,  292. 
t.   Dental  Examiners,  110  HL 

180.     §  29. 
v.  Detroit    (Board    Educ),    18 

Mich.  400.     §§  115,  228. 
v.  Detroit    (Corn.   Council),  18 

Mich.  338.    §  143. 
v.  Detroit  (Corn.    Council),    29 

Mich.  108.    §  113. 
v.  Detroit  (Superior  Judge),  40 

Mich.  729.    §  189. 
v.  Dickson,  46  CaL  53.    §  190. 
v.  District  Court,  14  Colo.  396. 

§§201,204. 
v.  Dowling,  55  Barb.  197.  §§62, 

221. 
v.  Dulaney,  96  111.  503.     §§  16, 

67,  89. 
v.  Dutcher,  56  111.  144    §  128. 
v.  Dutchess   C.  Pleas  (Judges), 
20  Wend.  658.     §§  46,  187, 
196. 
v.  Dutchess,  etc.  R  R,  58  N.  \ 

152.     §§  76,  159,  255,  296. 
v.  East  Saginaw,  40  Mich.  336. 


v.  East  Saginaw  (Com.  Council), 

33  Mich.  164.     §  63. 
v.  Edmonds,  15  Barb.  529.  §  135. 
v.  Edmonds,  19  Barb.  468.  §  135. 
v.  Education  Board,  127  114  613. 

§§  224,  230,  290. 
v.  Edwards,  66  III.  59.     §  84 
v.  Elmira  (Town    Auditor),  82 

N.  Y.  80.     §  126. 
v.  Essex  County  (Sup'rs),  70  N. 

Y.  228.     §§  52,  111,  233. 
v.  Fairbury  (Town),  51  111.  149. 

§114 


People  v.  Fairman,   91  N.  Y.  385. 
§285. 
v.  Fay,  3  Lansing,  398.     §  117. 
v.  Ferris,  76  N.  Y.  326.     §  43. 
v.  Finger,  24  Barb.  341.    §§  268, 

290,  292. 
v.  Fitzgerald,  41  Mich.  2.   §  313. 
v.  Fleming,  4  Denio,  137.  §  123. 
v.  Fletcher,  2  Scam.  482.    §  85. 
v.  Fort  Edward  (Trustees),   70 

N.  Y.  28.     §  128. 
v.  Forquer,  Breese,  68.     §§  33, 

83. 
v.  Fowler,  55  N.  Y.  252.    §  60. 
v.  French,  102  N.  Y.  583.  §  120. 
v.  Frink,  32  Mich.  96.     §  135. 
v.  Fulton  (Sup'rs),  14  Barb.  52. 

§§  269,  286. 
v.  Fulton  Co.  (Sup'rs),  53  Hun, 

254    §§280,283. 
v.  Gale,  22  Barb.  502.    §  85. 
v.  Garnett,  130  Ilk  340.    §§  46, 

202,  203,  205,  313. 
v.  Genesee  Cir.  Judge,  37  Mich. 

281.     §  63. 
v.  Genet,  59  N.  Y.  80.     §§  68, 

194 
v.  German,  etc.  Church,  53  N. 

Y.  103.    §§  157,  166. 
v.  Gilmer,  10  111.  242.      §§  50, 

187. 
v.  Glann,  70  I1L  232.     §§  128, 

255. 
v.  Governor,  29  Mich.  320.  §§  94, 

95,  102. 
v.  Grand  Co.  (Com'rs),  6  Colo. 

202.     §  179. 
v.  Green,  56  N.  Y.  466.    §  126. 
^.  Green,  64  N.  Y.  499.     §§  13, 

126,  307. 
v.  Greene  Co.  (Sup'rs),  12  Barb. 
217.     §§  53,  66,  77,  184,  185. 
v.  Hake,  81  III  540.     §  82. 
v.  Halsey..  37  N.  Y.  344    §§  135, 

230. 
v.  Hamilton   Co.,  3    Neb.   244. 
§253. 


OASES   CITED. 


Xli 


People  v.  Harris,  9  Cal.  571.    §§  212, 
281. 
v.  Hatch,  33  I1L  9.    §§  50,  66, 

94,  286. 
v.  Hawkins,  46  N.  Y.  9.     §  51. 
v.  Haws,  36  Barb.  59.     §  126. 
v.  Hays,  5  Cal.  66.     §  123. 
v.  Hayt,  66  N.  Y.  606.    §§  57, 

75,  234,  255. 
v.  Head,  25  111.  325.     §§  23,  154. 
v.  Herkimer    Co.    (Sup'rs),    56 

Barb.  452.     §  111. 
v.  Highway  Com'rs,  27  Barb.  94. 

§§  81, 116. 
v.  Highway    Com'rs,  25  How. 

Pr.  257.     §  309. 
v.  Highway  Com'rs,  52  111.  498. 

§292. 
v.  Highway  Com'rs,  88  111.  141. 

§51. 
v.  Hilliard,  29  III  413.    §§  140, 

142,  154,  178,  182,235,259. 
v.  Holden,  91  111.  446.    §  128. 
v.  Hubbard,  22  Cal.  34.°  §  212. 
v.  Huntoorj,  71  111.  536.     §  212, 
v.  Hyde  Park,  117  111.  462.^  §§  60, 

129,  222,  257. 
v.  Inspectors    State    Prison,   4 
Mich.  187.    §§  21,  108,  229. 
v.  Jackson    Cir.   Ct.   Judge,  21 

Mich.  577.     §  220. 
v.  Jackson  Co.  (Sup'rs;,  24  Mich. 

237.     §  111. 
v.  Jameson,  40  111.  93.    §  190. 
v.  Johnson,  100  111.  537.     §§  56. 

57,  135. 
v.  Judge  12th  Dist,  17  Cal.  547. 

§65. 
v.  Kent  Cir.  Ct.  Judge,  38  Mich. 

351.     §  201. 
v.  Ketchum,  72  111.  212.     §  63. 
v.  Kilduff,  15  111.  492.    §§  154, 

155,  274. 
v.  King,  110  N.  Y.  418.     §  25. 
v.  Klokke,  92  111.  134.     §  57. 
v.  Knickerbocker,   114  111.  539. 
§31. 


People  v.  La  Grange  (Tp.  Board),  2 
Mich.  187.    §§  114,  252, 262, 
294. 
v.  La  Salle  Co.  (Sup'rs),  84  111 

303.    §  111. 
v.  Lawrence,  6  Hill,  244.   §  135. 
v.  Lee,  14  Cal.  510.    §  192. 
v.  Lieb,  85  111.  484.     §  155. 
v.  Livingston    Co.    (Sup'rs),  26 

Barb.  118.     §  126. 
v.  Livingston  Co.  (Sup'rs),  68  N. 

Y.  114.    §§  130,  225. 
v.  Loucks,  28  Cal.  68.     §  85. 
v.  McClay,  2  Neb.  7.    §  123. 
v.  McCormick,     106     111.     184 

§§  29,  286,  288. 
v.  McLane,  62  Cal.  616.    §  51. 
v.  Macomb  Co.  (Sup'rs),  3  Mich. 

475.    §§  32,  126. 
v.  McRoberts,     100     111.     458. 

§187. 
v.  Mahoney,     30     Mich.     100. 

§§  134,  291. 
v.  Manhattan,  etc.  Co.,  45  Barb. 

136.     §  162. 
v.  Masonic  B.  Ass'n,  98  111.  625. 

§§  49,  68. 
v.  Masonic,  etc.  Ass'n,  126  N.  Y. 

615.    §  174. 
v.  Matteson,  17  111.  167.     §  143. 
v.  Mead,  24  N.  Y  114.     §  109. 
v.  Mechanics'  Aid  Sou,  22  Mich. 

86.    §§  166, 170. 
v.  Medical    Soc.    of     Erie,    24 

Barb.  570.     §§  49, 166. 
v.  Medical  Soc.  of  Erie,  32  N.  Y. 

187.     §§  49,  172. 
v.  Metropolitan  Pol.  Board,  26 

N.  Y  316.     §§  62,  292. 
v.  Miner,  37  Barb.  466.     §  124. 
v.  Miner,  46  111.  384.     §  126. 
v.  Monroe  Co.  (Probate  Judge), 

16  Mich.  204.     §  187. 
v.  Monroe  Oyer  &  Terminer,  20 

Wend.  108.     §§  78,  211. 
v.  Moore,  29  Cal.  427.     §  201. 
v.  Mott,  1  How.  Pr.  247.     §  161. 


ylii 


CASES    CITED. 


People  v.  Mount  Morris  (Town)  (I1L, 
1891),  27    N.  E.   Rep.  757. 
§224 
v.  Musical,  etc.  Union,  118  N.  Y. 

101.     §§  168,  310. 
v.  Muskegon  Circuit  Judge,  40 

Mich.  63.     §§  187,  204. 
v.  Nash,  47  Hun,  542.     §  16. 
v.  Newton,  126  N.  Y.  656.     §  72. 
v.  New  York,  3  John.  Cas.  79. 

§143. 
v.  New  York  (Com.  Assoc),  18 

Abb.  Pr.  271.     §  166. 
v.  New  York  (Com.   Coun.),  3 

Keyes,  81.    §237. 
v.  New  York  (Comptroller),  77 

N.  Y.  45.     §  126. 
v.  New  York,    etc.    R   R,    22 
Hun,  533.     §§  27,  158,  162. 
v.  New    York.   etc.   R  R,  28 

Hun,  543.     §§  27,  162. 
v.  New  York,  etc.  R    R,   104 

N.  Y.  58.    §§  27,  158. 
v.  New  York  (Mayor),  10  Wend. 

393.     §§  51,  53,  55,  313. 
v.  New  York  (Mayor),  25  Wend. 
i  680.    §  136. 

v.  New  York  (Sup'rs),  1  Hill, 

362.     §  126. 
v.  New  York  (Sup'rs),  32  N.  Y. 

473.     §126. 
v.  New  York   (Sup.  Court),  18 

Wend.  675.     §  197. 
v.  New  York  (Sup.  Court),  19 

Wend.  701.     §  187. 
v.  Niagara  C.  Pleas,  12  Wend. 

246.     §197. 
v.  Northern  P.  R.  R,  18  Fed. 

Rep.  471.     §§  14, 161. 
v.  Norton,  16  Cal.  436.    §  189. 
v.  Nostrand,    46    N.    Y.     375. 

§§  154,  262,  297. 
v.  Ohio  Grove  Town,  51  111.  191. 

§§111,  274. 
v.  Olds,  3  Cal.  167.    §  143. 
v.    Olmsted,     45     Barb.    644. 
§127. 


People  v.  Oneida  C.  Pleas  (Judges), 

21  Wend.  20.    §  197. 
v.  Onondaga  Co.  (Board  Can- 
vas.) (N.  Y,  1891),  29  N.  E. 

Rep.  327.    §  179. 
v.  Onondaga  Co.  (Sup'rs)  (N.  Y, 

1891),   29  N.   E.  Rep.    355. 

§179. 
v.  Ontario  (Sup'rs),  85  N.  Y.  323. 

§269. 
v.  Opdyke,  40  Barb.  306.    §  109. 
v.  Otsego  Co.  (Sup'rs),  53  Barb. 

564.     §§  111,  127. 
v.  Otsego  Co.  (Sup'rs),  51  N.  Y. 

401.    §  34 
v.  Pacheco,  29  Cal.  210.    §  228. 
v.  Pacific  Mail  Steam.  Co.,  50 

Barb.  280.    §  161. 
v.  Palmer,  52  N.  Y.  83.     §  135. 
v.  Parker  V.  C.  Co.,  10  How.  Pr. 

543.     §  160. 
v.  Pearson,  1  Scam.  458.   §§  204, 

252. 
v.  Pearson,  2  Scam.  189.   §§  190, 

248,  261,  266,  319,  322. 
v.  Pearson,  3  Scam.  270.   §§  193, 

266. 
v.  Perry,  13  Barb.  206.     §  39. 
v.  Police  Board,  35  Barb.  527. 

§§  74,  120. 
v.  Police  Board,  35  Barb.  535. 

§120. 
v.  Police  Board,  35  Barb.  544 

§120. 
v.  Police  Board,  35  Barb.  644 

§120. 
v.  Police  Board,  35  Barb.  651. 

§120. 
v.  Police  Board,  46    Hun,  296. 

§282. 
v.  Police  Board,  107  N.  Y.  235. 

§56. 
v.  Police    Commissioners,    108 

N.  Y  475.     §  310. 
v.  Pratt,  28  Cal.  166.    §  196. 
v.  Prendergast,    117    111.    588. 

§208. 


CASES   CITED. 


xliii 


People  v.  Pritchard,  19  Mich.  470. 

§§  285,  310. 
v.  Ransom,  2  N.  Y.  490.     §  225. 
v.  Reis,  76  Cal.  269.    §  23. 
v.  Rice  (N.  Y.,  1891),  29  N.  E. 

Rep.  355.     §  179. 
v.  Richmond    Co.    (Sup'rs),   20 

N.  Y.  252.     §  225. 
v.  Rives,  27  111.  242.   §§  140, 182. 
v.  Rochester,  etc.  R.  R,  76  N.  Y. 

294.     §  302. 
v.  Rome,  etc.  R.  R,  103  N.  Y. 

95.     §§  27a,  159,  229. 
v.  Russell,  46  Barb.  27.     §  187. 
v.  Saint  Franciscus,  etc.   Soc, 

24  How.  Pr.  216.     §§  166, 

168. 
v.  Saint  Luke's  Church,  7  Cush. 

226.     §  23. 
v.  Salomon,  46  111.  333.     §  270. 
v.  Salomon,  46  111.  415.  §§  52, 56. 
v.  Salomon,  51  111.  37.     §  82. 
v.  Salomon,  54  111.  39.     §§  65, 

127. 
v.  San    Francisco    (Sup'rs),    11 

Cal.  42.     §  126. 
v.  San    Francisco    (Sup'rs),    20 

Cal.  591.     §  65. 
v.  San    Francisco    (Sup'rs),    21 

Cal.  668.    §§  113,  130. 
v.  San    Francisco   (Sup'rs),    27 

Cal.  655.     §§  282,  285,  291. 
v.  San    Francisco    (Sup'rs),    36 

Cal.  595.     §§  116,  229. 
v.  San  Luis  Obispo  Co.  (Sup'rs), 

50  Cal.  561.     §  35. 
v.  Scates,  3  Scam.  351.     §§  203, 

262. 
v.  Schiellein,  95  N.  Y.  124.  §  185. 
v.  Schools  (Board  Trustees),  111 

I1L  171.     §  108. 
v.  Schuyler,  69  N.  Y.  242.  §  126. 
v.  Schuyler,  79  N.  Y.  189.  §  135. 
v.  Scrugham,     20     Barb.    302. 

§150. 
v.  Secretary  of  State,  58  111.  90. 

§§  103,  105,  234a,  235. 


People  v.  Sexton,  24  Cal.  78.    §  187. 
v.  Sexton,  37  Cal.  532.     §  187. 
v.  Smith,  77  N.  Y.  347.     §  120. 
v.  Spruance,  8  Colo.  307.    §  57. 
v.  State  Auditors,  42  Mich.  422. 

§§  53,  94,  102,  229. 
v.  State      Canvassers    (Board), 

(N.  Y,  1891),  29  N.  E.  Rep. 
■    355.     §  179. 
v.  State  Insurance  Co.,  19  Mich. 

392.     §  159. 
v.  State    Prison    Inspectors,   4 

Mich.  187.    §  51. 
v.  State    Treasurer,    23    Mich. 

499.     §103. 
v.  State  Treasurer,  24  Mich.  468. 

§§  10,  13,  51, 55,  82, 103, 311, 
v.  Steele,  2  Barb.  397.     §  21. 
v.  Stephens,  2  Abb.  Pr.  (N.  S.) 

348.    «§  65,  143. 
v.  Stout,  23  Barb.  338.     §  135. 
v.  Straight,  128  N.  Y.  545.  §  152. 
v.  Sullivan  Co.  (Sup'rs),  56  N.  Y. 

249.     §§  230,  253,  269,  281. 
v.  Supervisor,      100     111.      332. 

§238. 
v.  Swift,  59  Mich.  529.     §§  36, 

201,  203. 
v.  Syracuse    (Com.   Coun.),    78 

N.  Y.  56.     §  87. 
v.  Thistlewood,     103     HI.    139. 

§§  245,  252. 
v.  Thompson,  25  Barb.  73.  §  136. 
v.  Thompson,  66  Cal.  398.   §  82. 
v.  Thompson,  99  N.  Y.  641.  §  16. 
v.  Throop,     12      Wend.       183. 

§§  161,  234,  237. 
v.  Tioga  Com.  Pleas,  1  Wend. 

291.     §  247. 
v.  Town  Auditors,  74  N.  Y.  310. 

§  126. 
v.  Town  Auditors,  75  N.  Y.  316. 

§126. 
v.  Tremain,  29  Barb.  96.     §§  6(i, 

105,  126. 
v.  Troy  (Com.  Coun.),  78  N.  Y. 

33.     §§  29,  31,  32,  46,  77. 


xliv 


CASES   CITED. 


People  v.  Turner,  1  Cal.  143.    §  40. 
v.  Ulster  Co.  (Judges),  1  John. 

64.    §  266. 
v.  Ulster  Co.  (Sup'rs),  24  Mich. 

237.     §  111. 
v.  University  (Regents),  4  Mich. 

98.    §§  70,  229. 
v.  Van  Buren  Co.  (Judge),  41 

Mich.  725.     §  192. 
v.  Walker,  9  Mich.  328.    §§  161, 

322. 
v.  Walsh,  117  N.  Y.  621.     §  25. 
v.  Warfield,  20  111.  159.     §  82. 
v.  Washington  C.  Pleas  (Judges), 

2  Caines,  97.    §  190. 
v.  Wayne  Cir.  Court,  20  Mich. 

220.     §  187. 
v.  Wayne  Cir.  Court,  32  Mich. 

259.     §  190. 
v.  Wayne  Cir.  Judge,  22  Mich. 

493.     §200. 
v.  Wayne  Cir.  Judge,  27  Mich. 

303.     §  206. 
v.  Wayne  Cir.  Judge,  30  Mich. 

98.    §201. 
v.  Wayne  Cir.  Judge,  39  Mich, 

115.     §  200. 
v.  Wayne     Co.     (Auditors),     5 

Mich.  223.     §  126. 
v.  Wayne    Co.    (Auditors),    41 

Mich.  223.     §  111. 
v.  Waynesville  (Town),  88  I1L 

469.     §128. 
v.  Weber,   86  111.   283.     §§  62, 

262. 
v.  Wendell,  71  N.  Y.  171.  §§  56, 

135. 
v.  Westchester  C.  Pleas  Court, 

4  Cow.  73.     §  190. 
v.  Westchester  (Sup'rs),  15  Barb. 

607.     §§  75,  127,  255,  269. 
v.  Westchester  (Sup'rs),  73  N.  Y. 

173.     §§  126,  285. 
v.  Weston,  28  CaL  639.    §§  46, 

187,  205,  313. 
v.  Wexford  Co.  Treas.,  37  Mich. 

351.     §  238. 


People  v.  Whipple,  41  Mich  548. 

§§  69,  113. 
v.  White,  54  Barb.  622.    §  114. 
v.  Wiant,  48  111.  263.    §  82. 
v.  Williams,  55  111.  178.     §  187. 
v.  Williams,  91  111.  87.    §  190. 
v.  Wood,  35  Barb.  653.    §  16. 
v.  Yates,  40  111.  126.  §§94, 234a, 

291. 
v.  Zane,  105  111.  662.    §  204 
Peoria  Co.  (Sup'rs)  v.  Gordon,  82  111. 

435.    §  314 
Peralta  v.  Adams,  2  Cal.  594  §  201. 
Perkins  v.  Ind.  School  Dist,  56  Iowa, 

476.     §  115. 
Perry,  Ex  parte,    102    U   S.    183. 

§§  196,  201. 
Person  v.  Warren  R.  R.,  32  N.  J.  L. 

441.     §  19. 
Peters  v.  State  Canvassers  (Board), 

17  Kans.  365.    §  184 
Pfister  v.  State,  82  Ind.  382.    §§  111, 

262. 
Philips  v.  Bury,  1  L.  Raym.  5.   §  40. 
v.  Bury,  4  Mod.  106.    §  313. 
v.  Bury.  2  Term,  356.      §§  40, 

175,  313. 
Phillips  v.  School  District,  79  Mich. 

170.     §  115. 
Phoenix  Iron  Co.  v.  Commonwealth, 

113  Pa  St.  563.    §§  55,  161, 

285,  288. 
Pickell    v.    Owen,    66   Iowa,    485. 

§§  51,  85,  112. 
Pickett,  Ex  parte,  24  Ala.  91.  §  107. 
Pike  Co.  (Com'rs)  v.  People,  111  I1L 

202.     §§  135,  228. 
Pile,  Ex  parte,  9  Ark.  336.    §  197. 
Pinckney  v.  Henegan,  2  Strob.  250. 

§§  102,  309. 
Pistorius  v.  Stempel,  81  Mich.  133. 

§§  49,  68. 
Pittsburgh,  etc.  R.  R  v.  Common- 
wealth,   104    Pa,    St.    583. 

§§  13,  159. 
Poindexter  v.  Greenhow,  114  U.  S. 

270.     §  98. 


CASES   CITED. 


xIy 


Poindexter  v.  Greenhow,  84  Va.  441. 

§20. 
Police  Board    v.  Grant,  9  Sm.   & 

Mar.  77.    §§  32,  130. 
Polk  v.  Winett,  37  Iowa,  34.     §  129. 
Polk  County  (Coni'rs)  v.  Johnson, 

.   21  Fla.  578.     §  274. 
Pond  v.  Parrott,  42  Conn.  13.    §  57. 
Poor  Commissioners   v.   Lynah,  2 

McCord,  170.     §§  40,  313. 
Porter    Township     (Overseers)    v. 

Jersey    Shore    (Overseers), 

82  Pa.  St.  275.     §§  53,  56. 
Portman  v.  Fish  Commissioners,  50 

Mich.  258.     §  16. 
Portwood      v.     Montgomery      Co. 

(Sup'rs),  52  Miss.  523.  §  111. 
Postmaster-General  v.  Trigg,  11  Pet. 

173.     §§  246,  261. 
Poteet  v.  Commissioners,  30  W.  Va. 

58.     §  269. 
Potter  v.  Todd,  73  Mo.  101.    §  187. 
Poultney  v.  Bachman,  10  Abb.  N.  C. 

252.     §  169. 
v.  Bachman,  31  Hun,  112.  §  169. 
v.  La  Fayette  (City),  12  Pet.  472. 

§§  187,  246,  261. 
Powell  v.  Tarry,  77  Va.  250.     §  190. 
Pratt  v.  Meriden  C.  Co.,  35  Conn.  36. 

§161. 
Prescott  v.  Gonser,  34    Iowa,  175. 

§§  57,  121,  314. 
President  v.  Elizabeth  (Mayor),  40 

Fed.  R.  799.     §§  298,  299, 

310. 
Price  v.  Riverside,  etc.  Co.,  56  Cal 

431.     §§  27,  162,  224 
Prickett,   In  re,  20  N.   J.   L.   134 

§118. 
Privett  v.  Stevens,  25  Kans.  275 

§179. 
Proll  v.  Dunn,  80  Cal.  220.     §  104 
Prospect    Brew.    Company's    Peti- 
tion, 127  Pa.  St  523.    §  274 
Public    Schools   (Com'rs)    v.   Alle- 
gany Co.  (Com'rs),  20  Md, 

449.     §§  34,  65,  75,  221. 


Pucket   v.    Bean,    11    Heisk.    600. 

§142. 
v.  White,  22  Tex.  559.  §§  57,  60. 
Pudney  v.  Burkhart,  62  Ind.  179. 

§123. 
Pulford    v.    Fire    Department,    31 

Mich.  458.    §  168. 
Pumphrey  v.  Baltimore  (Mayor),  47 

Md.  145.     §§  116,  230. 
Purdy  v.  Sinton,  56  Cal.  133.    §  119. 
Putnam,   Ex   parte,    20    Ala.    592. 

§199. 
Putnam  v.  Langley,  133  Mass.  204. 

§146. 
Putnam  Co.  (Com'rs)  v.  Allen  Co. 

(Aud.).  1  Ohio  St  322.  §  126. 


Q. 


Quan  Wo  Chung  v.  Laumeister,  83 

Cal.  384.    §  123. 
Queen  v.    See  Regina  v. 

E. 

Railroad  v.  Wiswall,  23  Wall  507. 

§220. 
Railroad  (Com'rs)  v.  Portland,  etc. 

RR,  63  Me.  269.  §§158,159. 
Railway  Co.,  Ex   parte,   103  U.  S. 

794.     §§  46,  201. 
Raisch  v.  Education  (Board),  81  Cal. 

542.     §§  19,  54,  115. 
Ralls  County  v.  United  States,  105 

U.  S.  733.    §§  20,  129,  131, 

260. 
Ramagnano  v.  Crook,  85  Ala.  226. 

§§  39,  419. 
Randolph    v.    Stalnaker,   13  Grat 

523.     §  111. 
Ray,  Ex  parte,  45  Ala.  15.    §  201. 
Reading    (Councils)    v.    Common- 
wealth,   11    Pa.    St    196. 

§116. 
Redding  v.  Bell,  4  Cal.  333.    §  256. 
Rees  v.  Watertown  (City),  19  Wall. 

107.     §§  20,  218. 


xlvi 


OASES   CITED. 


Reeside  v.  "Walker,  11  How.  272. 

§§  31,  90, 100. 
Eegina  v.  Adamson,  1  Q.  B.  D.  201. 
§§  61,  212. 
v.  All  Saints  (Church  Wardens), 

I  Ap.  Cas.  611.    §§  77,  87. 
v.  Ambergate,  etc.  R.  R.,  17  Ad. 

&  E.  (N.  S.)  362.    §  222. 
v.  Ambergate,  etc.  R.  R,  1  EL 

&  BL  372.     g§  60,  76. 
v.  Arnauld,  16  L.  J.  (N.  S.)  50, 

Q.  B.    §  60. 
v.  Baldwin,  8   Ad.  &  R  947. 

§295. 
v.  Barnwell  (Com'rs  Land  Tax), 

II  Mod.  206.    §  127. 

v.  Birmingham,  etc.  R.  R,  2  Ad. 

&E.  (N.  S.)47.    §76. 
v.  Blackwell  R.  R,  9  D.  P.  C. 

558.    §68. 
v.  Bradford  (Mayor),  4  Eng.  L. 

&  E.  194.     §  138. 
v.  Bridgman,  15  L.  J.  (N.  S.)  44, 

M.  C.    §  212. 
v.  Bristol  (Just.),  28  Eng.  L.  &  E. 

160.     §§  32,  61,  187. 
v.  Bristol,  etc.  R.  R.,  4  Ad.  & 

E.  (N.  S.)  162.     §  226. 
v.  Brown,    7  Ellis    &    B.   757. 

§§  45,  61,  212. 
v.  Cadogan,  5  B.   &  Aid.   902. 

§14. 
v.  Chapman,  6  Mod.  152.  §§237, 

268,  282. 
v.  Chester  (Dean),  15  Q.  B.  513. 

§175. 
v.  Clitheroe,  6  Mod.  133.    §  293. 
v.  Cory,  3  Salk.  230.    §  246. 
v.  Derby  (Councilors    of  Bor- 
ough), 7  A.  &E.  419.    §143. 
v.  Derby  (Mayor),  2  Salk.  436. 

§86. 
v.  Derbyshire,  etc.  R.  R,  3  EL  & 

BL  784.     §  161. 
v.  Dover  (Mayor),  11  A.  &  E. 

(N.  S.)  260.    §§  286,  310. 


Regina  v.  East,  etc.  Docks,  2  El.  & 

B1.466.    §§291,296. 
v.  Eastern  C.  R.  R,  10  Ad.  &  E. 

531.    §§159,227,268. 
v.  Exeter  (Chapter),  12  A.  &  E. 

512.    §  51. 
v.  Fall,  1  Q.  B.  636.    §  290. 
v.  Fox,  20  Q.  B.  D.  246.     §  251. 
v.  Gamble,  11  A.  &  E.  69.    §  53. 
v.  Gamble,  3  Per.  &  Dav.  122, 

note  d.    §  258. 
v.  Goodrich,  19  L.  J.  Q.  B.  413. 

§36. 
v.  Great  Western  R.  R.,  5  Ad. 

&  E.  (N.  S.)  597.     §  293. 
v.  Great  Western  R  R,  1  El.  & 

B.  253.     §  227. 
v.  Guise,  2  L.  Raym.  1008.  §281. 
v.  Halifax  (Overseers  Poor),  10 

L.  J.  M.  C.  81.    §  53. 
v.  Harden,  23  L.  J.  Q.   B.  127. 

§310. 
v.  Harland,  8    Ad.  &  E.  826. 

§187. 
v.  Heathcote,  10  Mod.  48.    §§  6, 

53,  63. 
v.  Hereford    (Mayor),  2   Salk. 

701.    §  237. 
v.  Hopkins,  1  Ad.  &  E.  (N.  S.) 

161.     §§  23,  156,  255. 
v.  Hudson,  9  Jur.  345.    §  297. 
v.  Hull,  etc.  R.  R,  6  Ad.  &  E. 

(N.  S.)  70.     §  55. 
v.  Ipswich    Corporation,  2    L. 

Raym.  1283.     §  299. 
v.  Kendall,  1  Q.  B.  366.    §  165. 
v.  Kestevan  (Just),  3  Q.  B.  810. 

§45. 
v.  King,  20  Q.  B.  D.  430.    §  267. 
v.  Lambourn  V.  R.  R.,  22  Q.  B. 

D.  463.     §  160. 
v.  Lane,  2  L.  Raym.  1304.  §  281. 
v.  Ledyard,  1  Q.  B.  616.   §§  269, 

303. 
v.  Leeds  (Mayor),  11  A.  &  E. 

512.    §§  139,  141. 


CASES    CITED. 


xlvii 


Regina  v.  Leeds,  etc.  Co.,  11  A.  &  E.  [ 

316.     §  87. 
v.  Leicester,  15  Q.  B.  671.  §§  36, 

45. 
v.  Liverpool,  1  Eng.  L.  &  E.  810. 

§45. 
v.  London,  etc.  R.  R,  16  Ad.  & 

E.  (N.  S.)  864.     §  164. 
v.  Lords  Com'rs  Treasury,  L.  R 

7  Q.  B.  387.    §§  89,  90. 
v.  Luton  Roads  (Trustees),  1  A. 

&  E.  (N.  S.)  812,     §  164. 
v.  Mainwaring,   Ellis,  B.  &  C. 

474.     §§  32,  61,  212. 
v.  Manchester  (Council),  9  Q.  B. 

458.     §  292. 
v.  Manchester,  etc.  R  R,  8  A.  & 

E.  413,  427.     §  293. 
v.  Middlesex  (Just),  2  Ad.  &  E. 

(N.  S.)  433.     §  175. 
v.  Middlesex  (Just),  2  Q.  B.  D. 

516.     §  187. 
v.  Midland,  etc.  R.  R,  9  L.  T.  R 

(N.  S.)  151.    §  160.' 
v.  Newbury,  1  Q.  B.  751,  758. 

§§  294,  310. 
v.  New  Windsor  (Mayor),  7  A. 

&  E.  (N.  S.)  908.     §  286. 
Y.  North  Midland  R  R,  11  A.  & 

E.  955.    §  286. 
v.  Norwich  (Mayor),  2  Salk.  436 ; 

L.  Raym.  1244.    §§  277, 281. 
v.  Oswestry  (Treas.),  12  Q.   B. 

239.     §  135. 
v.  Payn,  11  A.  &  E.  955.    §  284. 
v.  Peach,  2  Salk.  572.    §  43. 
v.  Pickles,  3  Ad.  &  E.  (N.  S.) 

599.     §£  234a,  293. 
v.  Pirehill  North  (Just),  13  Q. 

B.  D.  696.     §  267. 
v.  Pirehill  North  (Just),  14  Q. 

B.  D.  13.     §  267. 
v.  Pitt,  10  A.  &  E.  272.     §  82. 
v.  Pomfret  (Mayor),  10  Mod.  107. 

§§  274.  277,  281. 
v.  Poole  (Mayor),  1   Q.  B.  616. 
§§  268,  284,  297,  298,  301. 


Regina  v.  Powell,  1  Q.  B.  352.    §  89. 
v.  Powell,  1  Q.  B.  574.    §  235. 
v.  Radnorshire  (Just),  15  L.  J. 

(N.  S.)  151,  M.  C.     §§  57, 60. 
v.  Raines,  3  Salk.  233.    §  74. 
v.  Ray,  44  Up.  Can.  Q.  B.  17. 

§57. 
v.  Registrar,  21   Q.  B.   D.    131. 

§§  51,  53,  252. 
v.  Richards,  20  L.  J.  Q.  B.  351. 

§45. 
v.  St  Andrews  (Gov.),  10  A.  & 

E.  736.     §§  268,  284. 
v.  St.  Luke's  Vestry,  31  L.  J. 

Q.  B.  50.     §  58. 
v.  St.  Margaret's  Vestry,  8  A.  & 

E.  889.     §§  225,  257,  258. 
v.  St.  Martins  (Guard,  of  Poor), 

17  A.   &    E.    (N.   S.)    149. 

§138. 
v.  St.  Pancras,  24  Q.  B.  D.  371. 

§39. 
v.  St.  Pancras  (Direct,  of  Poor), 

7  A.  &  E.  750.     §§  290,  292. 
v.  St  Saviour  (Churchwardens), 

7  A.  &  E.  925.     §§  268,  310. 
v.  Smith,  30  Up.  Can.  Q.  B.  518. 

§304. 
v.  Southampton,  1  Best  &  S.  5. 

§81. 
v.  Southampton    (Com'rs),    30 

L.  J.  Q.  B.  244.     §  280. 
v.  Southampton     (Com'rs      of 

Port),  L.  R  4  Eng.  &  Irish 

Ap.  449.     §  260. 
v.  South  East  R  R,  25  Eng.  L. 

&  E.  13 ;   4  H.  L.  C.  471. 

§256. 
v.  Stamford  (Mayor),  6  Ad.  & 

E.  (N.  S.)  433.    §  292. 
v.  Swansea  Harbor  (Trustees),  8 

A.  &  E.  439.     §  19. 
v.  Tithes  Commissioners,  19  L. 

J.  Q.  B.  177.     §§  255,  291. 
v.  Treasury,  15  Jur.  767.    §  17. 
v.  Wigan    (Corp.),    Burr.    782. 

§278. 


xlviii 


CASES   CITED. 


Eegina  v.  York,  etc.  R.  R.,  1  E.  &  B. 

173.     §§76,227. 
Reichenbach  v.  Ruddach,  121  Pa- 
st. 18.     §§  190,  281. 
Respublica  v.  Clarkson,  1  Yeates, 
46.    §  110. 
v.  Guardians  of  Poor,  1  Yeates, 
476.    §110. 
Rex    v.   Abingdon,    12    Mod.    308. 
§282. 
v.  Abingdon   (Mayor),  2  Salk. 
432 ;  1  L.  Raym.  559.  §  281. 
v.  Abingdon  (Mayor),   2   Salk. 
431 ;  12  Mod.  401.     §§  235, 
274,  282. 
v.  Abingdon  (Mayor),  2   Salk. 

700.    §237. 
v.  Abrahams,  4  Q.  B.  157.  §§  22, 

56. 
v.  Adams,  2  A.  &  E.  409.     §  49. 
v.  Adamson,   1   Q.   B.   D.   201. 

§39. 
v.  Archbishop,     8    East,    213. 

§§  51,  55. 
v.  Askew,  4  Burr.  2186.    §§  28, 

157,  172. 
v.  Atwood,   4    B.   &   Ad.  481. 

§143. 
v.  Axbridge  (Mayor),  Cowp.  523. 

§§  74,  149. 
v.  Bank  of  England,  2   B.   & 

Aid.  620.     §§  21,  22. 
v.  Bankes,  3  Burr.  1452.   §§  138, 

235,  242a. 
v.  Barker,  3  Burr.  1265.    §§  1, 

10,  21,  49,  51,  62,  313. 
v.  Barker,  3  Burr.  1379.     §  292. 
v.  Bedford  (Corporation),  1  East, 

79.     §§  138,  141,  145. 
v.  Bedford  Level,  6  East,  356. 

§§  141,  173. 
v.  Blooer,  2  Burr.  1043.    §§  21, 

49. 
v.  Bower,  1  B.  &  C.  585.     §  145. 
v.  Brecknock,  etc.  Canal,  3  A. 

&  E.  217.     §  225. 
v.  Bristol,  1  Show.  288.    §  274. 


Rex  v.  Bristol  (Mayor),  1  Dow.  & 
Ry.  389.     §g  74,  149. 
v.  Bristow,  6  Term,  168.    §  53. 
v.  Broderip,  5  B.  &  C.  239 ;  7  D. 

&  R.  861.    §§  57,  212. 
v.  Cambridge  (Chan.),  6  Term, 

89.    §§  166,  313. 
v.  Cambridge  (Mayor),  4  Burr. 

2008.    §  138. 
v.  Cambridge  (Mayor),  2  Term, 

456.    §  277. 
v.  Cambridge  (Vice  Chan.),   3 

Burr.  1647.    §  165. 
v.  Cambridge  (University),  1 W. 

Black.  552.     §  10. 
v.  Cambridge  (University),  Fort 

202.     §§  2,  6. 
v.  Cambridge    (University),    8 

Mod.  148.    §§  49,  168. 
v.  Cambridgeshire  (Just),  1  D. 

&  R.  325.    §§  37,  87,  187. 
v.  Canterbury  (Archb.),  8  East, 

213.     §  56. 
v.  Canterbury  (Archb.),  15  East, 

139.     §  40. 
v.  Canterbury  (City),  1  Lev.  119. 

§  148. 
v.  Chester,  1  M.  &  S.  101.  §  143. 
v.  Chester,  5  Mod.  10.     §  232. 
v.  Chester    (Epis.),     Stra.    797. 

§175. 
v.  Chester  (Bish.),  1  Wils.  206. 

§175. 
v.  Christchurch,  7  E.  &  B.  409. 

§155. 
v.  Clapham,  1  Wils.    §  305. 
v.  Clarke,  2  East,  83.    §  143. 
v.  Clear,  4B.&C.  899.    §§  13, 

14,  21,  62. 
v.  Colchester  (Mayor),  2  Term, 

260.    §  143. 
v.  Colchester    (Town),    2   Keb. 

188.    §  276. 
v.  Coventry,  2  Salk.  430.    §§  74, 

149. 
v.  Customs  (Com'rs),  5  A.  &  E. 
380.    §89. 


CASES    CITED. 


xlix 


Rex  v.  Darlington,  12  L  J.  Q.  B.  128. 

§40. 
v.  Dayrell,  1B.&C.  485.    §  81. 
v.  Doncaster     (Mayor),     2    L. 

Rayni.   1564.     §§   137,  147, 

148,  275. 
v.  Doncaster  (Mayor),  Say.  37. 

§§  147,  275. 
v.  Dublin,  Stra.  536.    §  304. 
v.  Dublin  (Dean),   8    Mod.    27. 

§§  10,  268,  304. 
v.  East  India  Co.  (Directors),  4 

B.  &  Ad.  530.    §§  53,  225. 
v.  Edgvean,  3  Term,  352.  §  303. 
v.  Ely  (Bisbop),   5    Term,  475. 

§§  37,  175. 
v.  Esham,  2  Barn.  265.     §  266. 
v.  Essex    (Just.),   2    Cbit.    385. 

§41. 
v.  Everet,  Cas.  Temp.  Hard.  261. 

§§  13,  113. 
v.  Eye  (Bailiffs),  1  B.  &  C.  85. 

§§  57,  137. 
v.  Flintshire  (Just.),  11  Jur.  291. 

§45. 
v,  Fowey  (Mayor),  2  B.  &  C.  584. 

§57. 
v.  Fowey  (Mayor),  5  Dow.  &  Ey. 

614.     §§298,303. 
v.  Free  Fisbers  (Co.),  7    East, 

353.     §  166. 
v.  Frieston  (Inbab.).  5  B.  &  Ad. 

597.     §  45. 
v.  Gloucester  (Bishop),  2  B.  & 

Ad.  158.     §  40. 
v.  Goodrich,  3  Smith,  388.  §§  24, 

35,  319,  322. 
v.  Gower    (Dr.),    3    Salk.    230. 

§§  2,  6. 
v.  Grampond  (Mayor),  6  Term, 

301.    §§  82,  138. 
v.  Gray's  Inn  (Benchers),  Doug. 

353.     §  195. 
v.  Greame,  2  A.  &  E.  615.  §§  81. 

212. 
v.  Great  Favingdon,  9  Barn.  & 
Cres.  541.     §§  14,  155. 


Rex  v.  Griffiths,  5  B.  &  Aid.  731. 

§§  74,  149. 
v.  Halls,  3  A.  &  E.  494    §§  81, 

212. 
v.  Hare,  13  East,  189.    §  247. 
v.  Hay.  4  Burr.  2295.     §  82. 
v.  Haslemere,  Sayer,  106.    §  278. 
v.  Hereford  (Mayor),  2  Salk.  70. 

§  234a. 
v.  Hewes,  3  Ad.  &  E.  725 ;  5  N. 

&  M.  139.    §  189. 
v.  Ingram,  1  W.  Black,  50.  §  24. 
v.  Jeyes,  3  A.  &  E.  423.     §  84. 
v.  Jotham,  3  Term,  575.    §g  21, 

49. 
v.   Kent  (Just.),   14  East,  395. 

§§  39,  203. 
v.  Kingston  (Mayor),  8  Mod.  209. 

§232. 
v.  Knapton,  2  Keb.  445.     §  141. 
v.  Lancashire  (Just.),  7  B.  &  C. 

691.     §  39. 
v.  Leicester  (Just.),  4  B.  &  C. 

891.     §  262. 
v.  Leicestershire  (Just.),  1  M.  & 

S.  442.     §  189. 
v.  Leyland,  3  M.  &  S.  184   §  145. 
v.  Liverpool  (Town),  Burr.  723. 

§§  148,  275. 
v.  Liverpool  R.  R,  21  L.  J.  Q. 

B.  284    §  68. 
v.  London  (Mayor),  3  B.  &  Ad. 

255.   §§  40, 140, 268,  276, 277. 
v.  London  (Mayor),  9  B.  &  C.  1. 

§277. 
v.  London  (Mayor),  2  Term,  177. 

§§  74,  148,  149. 
v.  London  Assurance  Co.,  1  D. 

&  R  510.     §  160. 
v.  London  Assurance  Co.,  5  B. 

&  Aid.  901.     §  21. 
v.  London  Dock  Co.,  5  A.  &  E. 

163.    §294 
v.  Lords  Corn'rs  Treasury,  4  A. 

&  E.  286.     §  90. 
v.  Lords  Corn'rs  Treasury,  4  A. 

&  E.  984    §  90. 


1 


CASES    CITED. 


Rex  v.  Lyme  Regis  (Mayor),  Doug. 

144.     §§274,275. 
v.  Maiden  (Corporation),  2  Salk. 

431 ;  1 L.  RayiQ.  481.  §§  268, 

274 
v.  March,  2  Burr.  999.    §  268. 
v.  Margate  Pier  Co.,  3  B.  &  Aid. 

220.     §  269. 
v.  Marriott,  1  D.  &  R.  166.  §  294 
v.  Marylebone,  5  A.  &  E.  276. 

§14 
v.  Merchants'  T.  Co.,  2  Barn.  & 

Ad.  115.    §  161. 
v.  Middlesex  (Archd.),  3  A.  &  E. 

615.    §  234a. 
v.  Middlesex  (Justices),  4  Barn. 

&  Ad.  300.     §§  29,  32. 
v.  Milverton  (Lord  of  100),  3  Ad. 

&  E.  284     §  235. 
v.  Mirehouse.  2  A.   &  E.  632. 

§§  81,  212. 
v.  Monmouth  (Mayor),  L.  R.  5 

Q.  B.  251.     §§  45,  203. 
v.  Montacute,  1  W.  Bl.  64  §  11. 
v.  Montague,  1  Barn.  72.    §  212. 
and     Newcastle     upon     Tyne 

(Corp.),  1  Barn.  385.     §  301. 
v.  Norwich  (Mayor),  1  B.  &  Ad. 

310.    §§49,79. 
v.  Norwich  (Mayor),  Stra.   55. 


§§  234a,  237. 


159. 


v.  Norwich  (Dean),  Stra. 

§268. 
v.  Norwich  Sav.  Bank,  9  A.  &  E. 

729.     §  75. 
v.  North  Riding,  2  B.  &  C.  286. 

§29. 
v.  Nottingham  O.  W.  W.,  -6  A. 

&  E.  355.    §§  19,  53. 
v.  Nottingham  O.  W.  W.,  1  N. 

&  P.  480.    §  53. 
v.  Oundle  (Lord  of),  1  A.  &  E. 

283,  299.     §  268. 
v.  Ouze  Bank  Com'rs,  3  Ad.  & 

E.  544.     §  268. 
v.  Overseers  Shipton   Mallet,  5 

Mod.  420.     §  259. 


v. 


v. 


V. 
V. 
V. 


Rex  v.  Owen,  5  Mod.  314.    §  155. 
v.  Oxford,  6  A.  &  E.  349.  §  138. 
v.  Oxford  (Mayor),  2  Salk.  428. 

§§  148,  149. 
v.  Paddington  Vestry,  9   B.  & 

C.  456.     §  73. 
v.  Payn,  1  Nev.  &  P.  524.    §  155. 
v.  Penrice,  Stra.  1235.     §  276. 
v.  Pierson,    Andrews,     310,  n. 
§247. 
Richardson,    1    Burr.    517. 

§147. 
Robinson,  8  Mod.  336.  §§284, 

299. 
Robinson,  2  Smith,  274  §§  61, 

212. 

Round,  4  A  &  E.  139.    §  155. 

Rye  (Mayor),  Burr.  798.  §  266. 

Saint  Andrew  (Gov'rs  Poor), 

7  A.  &  E.  281.     §§  265,  282. 

v.  Saint    Catherine's    Hall,     4 

Term,  233.     §  175. 
v.  Saint  John's  College,  4  Mod. 

233.    §  175. 
v.  Saint  Katherine  Dock  Co.,  4 
B.  &  Ad.  360.    §§  19,  22. 
Saint  Pancras,  1  N.  &  P.  507. 

§§  260,  268. 
Saint  Pancras  (Ch.  Trustees), 
3  A.  &  E.  535.     §§  262,  291, 
293. 
Saint  Pancras  (Ch.  Trustees), 

6  A.  &  E  314    §  291. 
Serle,  8  Mod.  332.    §  141. 
Severn,  etc.  R.  R.,  2  B.  &  Aid. 

646.     §  159. 
Simms,  4  Dowl.  294     §  261. 
Simpson,  3  Burr.  1463.  §  242a. 
Smith,  2  M.  &S.  583.  §§234a, 

237. 
Somersetshire  (Just.),  4  N.  & 

M.  394     §§  81,  212. 
Sparrow,  2  Stra.  1123.     §  79. 
Stafford,  3  Term,  646.    §§  13, 

21,  55,  56. 
Stafford,  4  Term,  689.  §§  292, 
293. 


v. 


v. 

V. 

V. 
V. 
V. 

V. 

V. 
V. 


CASES    CITED. 


li 


V. 


V. 


V. 


Rex  v.  Staffordshire,  6  A.  &  E.  101. 

§68. 
Staffordshire  (Just),  6  A.  & 

E.  84.    §  267. 
State-Damerell  (Minister),   5 

A.  &  E.  584.     §  138. 
Suffolk  (Just.),  1  B.  &  A.  640. 

§212. 
Surrey  (Treas.),  1  Chit  650. 

§§  53,  84,  135. 
Taunton     (Churchwardens), 

Cowp.  413.     §  276. 
Taylor,  3  Salk.  231.    §§  237, 

281,  315. 
The  Baily,  1  Keb.  33.     §  282. 
Tod,  1  Stra.  530.     §  212. 
Tower  Hamlets,  3  Q.  B.  670. 

§14. 
Tregony  (Mayor),  8  Mod.  Ill, 

127.     §  235. 
Tucker,  3  B.  &  C.  544.    §  268. 
Turkey  Co.,  2  Burr.  999.  §  22. 
Victoria  Park  Co.,  1  Q.   B. 

288.     §  53. 
Ward,  2  Stra.  893.   §§  109, 141. 
Warwickshire       (Just),       5 

Dowl.  382.     §  247. 
Water      Eaton      (Lord      of 

Manor),  2  J.  P.  Smith,  55. 

§297. 
Welbeck  (Inhab.),  Stra.  1143. 

§274. 
West      Loe      (Corporation), 

Burr.  1386.     §  73. 
West  Looe  (Mayor),  5  Dow. 

&  R.  414.     §§  110,  151,  298. 
West  Riding  of  Yorkshire,  5 

B.  &  Ad.  667.     §  39. 
Wheeler,  Cas.  temp.  Hardw. 

99.    §§  13,  82. 
Wigan    (Corporation)    Burr. 

782.     §  138. 
Wildman,  2  Stra,  879.    §  165. 
Williams,    8    B.    &    C.   681. 

§276. 
Willingford  (Just),  2  Barn. 

132,    §269. 


v. 

V. 
V. 
V. 


V. 
V. 
V. 

V. 
V. 

V. 


V. 

V. 
V. 
V. 

V. 

V. 
V. 

V. 


Rex  v.  Wilts,  etc.  Nav.  (Prop'rs),  3 
A.  &  E.  477.     §§  14,  223. 
v.  Wiltshire  (Just),  10  East,  404. 

§39. 
v.  Winchester,  7  A.  &  E.  215. 

§143. 
v.  Windham,  Cowp.  377.    §§  10, 

51,  165. 
v.  Worcester  (Bishop),  4  M.  & 

S.  415.     §  175. 
v.  Worcester,  etc.  Co.,  1   Man. 

&  Ry.  529.     §  160. 
v.  York  (Archbishop),  6  Term, 

490.     §  274. 
v.  York  (Mayor),  4  Term,  699. 

§109. 
v.  York  (Mayor),    5  Term,   66. 
§§  277,  281. 
Reynolds  v.   Taylor,   43    Ala.   420. 

§105. 
Rhodes  v.  Craig,  21  Cal.  419.    §  204. 
Rice  v.  Austin,  19  Minn.  103.     §  94 
v.  State,  95  Ind.  33.     §  105. 
v.  Walker,  44  Iowa,  458.    §§  75, 
135. 
Rice,  etc.  Co.  v.  Worcester  (City), 

130  Mass.  575.     §  290. 
Richards   v.   Bristol    (Com'rs),    120 

Mass.  401.     §  111. 
Riddell    v.    Harmony    F.   Club,    8 

Phil.  310.     §  168. 
Ridley  v.  Doughty,  77  Iowa,  226. 

§§  127,  128. 
Riggs  v.  Johnson  County,  6  Wall 
106.     §§  216,  217,  218,  219, 
312. 
Riley  v.  Kansas  City,  31  Mo.  Ap. 

439.     §120. 
Rioters'  Case,  1  Vern.  175.    §  3. 
Roberts,  Ex  parte,  6  Pet.  216.  §  187. 
Robbins,  Ex  parte,  29  Ala.  71.  §  199. 
Robins,  Ex  parte,  3  Jur.  103.    §  27a. 
Robinson,  Ex  parte,  19  Wall.  505. 

§195. 
Robinson  v.  Butte  Co.  (Sup'rs),  43 
Cal.  353.     §§  129,  132. 
v.  Rogers,  24  Grat  319.     §  105. 


Hi 


CASES   CITED. 


Rochester  (Mayor)  v.  Queen,  L.  J. 

27  N.  S.  Q.  B.  434    §§  79, 

238. 
Rodgers  v.  Alexander,  35  Tex.  116. 

§208. 
Rodman    v.    Larue    Co.  (Just),    3 

Bush,  144.    §  130. 
Rollersville,  etc.   Co.   v.  Sandusky 

County,   1    Ohio    St.    149. 

§33. 
Rolston  v.  Missouri  Fund  Com'rs, 

120  U.  S.  390.     §  98. 
Roscommon    Midland    Sup'rs,    49 

Mich.  454.     §  290. 
Rose  v.  County  Com'rs,  50  Me.  243. 

§111. 
Rosenbaum  v.  Bauer,  120  U.  S.  450. 

§§  217,  220. 
v.  Supervisors,  28  Fed.  Rep.  223. 

§61. 
Ross  v.  Lane,  3  Sm.  &  M.  695.    §  60. 
Rowland,  Ex    parte,  26  Ala.   133. 

§210. 
Rowland,  Ex  parte,  104   U.  S.  604. 

§§  51,  86,  234,  302. 
Rugby  Charity  Trustees,  Ex  parte, 

9  D.  &  R  214.    §  56. 
Runion  v.  Latimer,    6    S.   C.  126. 

§§  51,  57,  108,  143,  264. 
Runkel  v.   Winemiller,  4  Har.   & 

McH.  429.    §§  10,  22,  49. 
Russell,  Ex    parte,   13   Wall.   664 

§203. 
Russell  v.  Elliott,  2  Cal.  245.    §§  65, 

189. 


S. 


Sage  v.  Lake  Shore,  etc.  R  R.,  70 

N.  Y.  220.    §§  14,  161. 
Saint  Clair  Co.  v.  People,  85  111.  396. 

§§  33,  39,  116. 
Saint  Louis  Co.  Court  v.  Sparks,  10 

Mo.  117.    §§  148,  237,  303. 
Saint  Luke's  Church  v.   Slack,   7 

Cush.   226.    §§  23,  51,  62, 

165,  313. 


Sale  v.  Baptist  Church,  62  Iowa,  26, 

§176. 
Sandlake  (Sup'rs)  v.  Berlin  (Sup'rs), 

2  Cow.  485.    §  114 
Sandys,  Ex  parte,  4  B.  &  Ad.  863. 

§74 
Sanger  v.  Kennebec  Co.  (Com'rs), 

25  Me.  291.     §§  116,  229. 
Sankey  v.  Levy,  69  CaL  244.     §  187. 
Sansom  v.    Mercer,    68    Tex.   488. 

§§  30,  31,  46,  230,  274,  284 
Sansome  v.    Myres,    77    Cal.    353. 

§190. 
Sauls  v.  Freeman,  24  Fla.  209.  §  315. 
Savannah  (Cotton  Ex.)  v.  State,  54 

Ga.  668.    §  166. 
Savannah  (Mayor)  v.  State,  4  Ga- 

26.     §§  87,  290. 
Sawyer,  Ex  parte,  88  U.   S.    235. 

§196. 
Scarborough,  Ex  parte  (S.  C,  1891), 

12  S.  E.  Rep.  666.     §  184 
Schend  v.  St.   George's  Society,  49 

Wis.  237.     §§  249,  252,  262. 
Schlaudecker  v.  Marshall,  72  Pa.  St 

200.     §§  40,  119,  188. 
Schmidt,   Ex  parte,   62    Ala.    252. 

§201. 
Schmidt     v.     Abraham      Lincoln 

Lodge,  84  Ky.  490.     §  158. 
School  Inspectors  v.  State,  20  111. 

525.    §  259. 
School  Directors  v.  Anderson,   45 

Pa.  St.  388.    §  70. 
School  District  v.  Bodenhamer,  43 

Ark.  140.     §  130. 
v.   Lauderbaugh,  80    Mo.   190. 

§§  256,  294,  296. 
Schwab,   Ex  parte,  98  U.  S.   240. 

§196. 
Schweiger  v.  Society,  13  Phila.  113. 

§275. 
Scott  Ex  parte,  8  Dowl.  328.    §  232. 
Scott  v.  Chambers,  62  Mich.   532. 

§200. 
v.  Superior  Court,  75  Cal.  114. 

§§  196,  313. 


CASES    CITED. 


liii 


Screwmen's  B.  Assoc,  v.  Benson,  76 

Tex.  552.     §§  49,  166,  169. 
Scripture  v.   Bums,   59    Iowa,   70. 

§§  30,  37,  313. 
Secombe,    Ex    parte,    19    How.   9. 

§§  216,  248.  261,  322. 
Secretary  v.  McGarrahan,  9  Wall. 
298.     §§  29,  31,  46,  100,  238. 
Sedberry  v.  Chatham  Co.  (Com'rs), 

66  N.  C.  486.    §  297. 
Selma,  etc.  R.  R.,  Ex  parte,  45  Ala. 
696.     §  111. 
46  Ala.  230.     §  277. 
46  Ala.  423.    §  103. 
Sessions  v.   Boykin,   78    Ala.    328. 

§§  54,  135,  136. 
Seymour  v.  Ely,  37  Conn.  103.  §§  32, 

116. 
Shadden  v.  Sterling,   23  Ala.   518. 

§204. 
Shandies,   Ex  parte,    66  Ala.   134. 

§§  75,  187,  204. 
Shannon  v.  Frost,  3  B.  Mon.  253. 

§176. 
Sheaff  v.  People,  87  111.  189.    §§  116, 

240. 
Shelby  v.  Hoffman,  7  Ohio  St.  450. 

§250. 
Shepard  v.   Milwaukee  G.  L.  Co., 
6  Wis.  529.     §  27. 
v.  Peyton,  12  Kans.  616.   §  190. 
Sheppard  v.  Wilson,  6   How.   260. 

§192. 
Sherburne  v.  Horn,  45  Mich.  160. 

§§  66,  140. 
Sherman    v.    Clark,    4    Nev.    138. 

§43. 
Shine  v.  Kentucky  C.  R.  R.,  85  Ky. 

177.    §§51,53. 
Shipley    v.    Mechanics'    Bank,    10 

John.  484.     §  160. 
Shrever  v.  Livingston  Co.,  9  Mo.  195. 

§306. 
Shrewsbury  v.  Kynaston,  7  Bro.  P. 

C.  396.     §  290. 
Sibley  v.  Cartaret  Club,  40  N.  J.  L. 
295.     §§  166, 168. 


Sights  v.  Yarnalls,   12    Grat.   292. 

§119. 
Sikes  v.    Ransom,     6    John.     279. 

§§  190,  192. 
Silver  v.  People,  45  111.  224.    §§  124, 

253,  274,  289. 
Silverthorn  v.  Warren  R.  R,  33  N. 
J.    L.    173.     §§  75,  76,  268, 
285. 
Simon  v.   Durham,    10    Oreg.    52. 

§§  179,  185. 
Singleton  v.  Commissioners,  2  Bay, 

105.     §§  147,  148,  275. 
Skaggs,  Ex  parte,  19  Mo.  339.    §  306. 
Small,  Ex  parte,  25  Ala.  74.     §  211. 
Smalley   v.   Yates,   36   Kans.   519. 

§21. 
Smith  v.  Boston  (Mayor),  1  Gray, 
72.    §  313. 
v.  Bourbon  Co.,  127  U.  S.   105. 

§111. 
v.  Bourbon     Co.     (Com'rs),   42 

Kans.  264.     §  314. 
v.  Eaton  Co.  (Sup'rs),  56  Mich. 

217.     §  142. 
v.  Independent  S.  Disk,  40  Iowa, 

518.  §  115. 
v.  Jackson,  1  Paine,  453.  §  217. 
v.  Lawrence  (S  Dak.,  1891),  49 
N.  W.  Rep.  7.  §§  178,  179, 
182,  185,  224,  228. 
v.  Moore,  38  Conn.  105.  §  212. 
v.  Ragsdale,  36  Ark.  297.  §  212. 
v.  Saginaw  (Mayor),    81  Mich. 

123.     §  229. 
v.  Strobr.ch,  50  Ala  462.     §  126. 
Smyth    v.    Titcomb,    31    Me.    272. 

§§  65,  187,  201,  273. 
Society  for  Visitation  v.  Common- 
wealth,    52    Pa.     Sk    125. 
§§  166,  274,  275. 
South  &  N.  Ala.  R.  R.,  Ex  parte,  65 

Ala.  599.    §  199. 
Spencer  Co.  (Jusk)  v.  Harcourt,  4  B. 

Mon.  499.     §§  149,  256. 
Spiritual  Aid  Society  v.  Randolph 
(Selectmen),  58  Vt.  192.  §  75. 


liv 


CASES   CITED. 


Spraggius  v.  Humphries  Co.  Court, 

Cooke,  160.    §  220. 
Sprague  v.   Fawcett,   53  Cal.   408. 

§192. 
Spring  Valley  W.  Co.  v.  Supervis- 
ors, 61  Cal.  18.     §  111. 
Springfield  v.  Hampden  Co.(Com'rs), 

10  Pick.  59.     §§  274,  294. 
Springfield,  etc.  R  R.  v.  Wayne  Co. 

(Clerk),  74  111.  27.     §  75. 
Squier  v.  Gale.  6  N.  J.  L.  157.    §  187. 
Stackpole  v.  Seymour,    127  Mass. 

104.    §  160. 
Stafford  v.  Union  Bank  La.,  17  How- 

275.     §§  189,  216,  245,  322. 

Starnes  v.  Tanner,  73  Ga.  144.     §  51. 

State  v.  Act  Board  Aldermen,  1  Rich. 

(N.  S.)  30.     §§  293,  294,  322. 

v.  Adams,  76  Mo.  605.     §  189. 

v.  Alachua  Co.  (Board   Com.), 

17  Fla.  9.     §§  183,  298,  299. 

v.  Ames,  31  Minn.  440.    §§  46, 

52,  109. 
v.  Anderson,  52  N.   J.   L.  150. 

§104. 
v.  Anderson    Co.    (Com'rs),   28 

Kans.  67.     §  62. 
v.  Applehy,  25  S.  C.  100.    §§  51, 

56,  57,  87. 
v.  Archibald,     43     Minn.     328. 

§§  75,  127,  241. 
v.  Auditor,    43    Ohio    St.    311. 

§57. 
v.  Babcock,  51  Vt.  570.    §  190. 
v.  Bacon,   6   Neb.   286.     §§  24, 

155. 
v.  Bailey,  7  Iowa,  390.    §§  179, 

224,  235,  294. 
v.  Baird,  11  Wis.  260.     §  266. 
v.  Baggott,  96  Mo.  63.    §  294. 
v.  Baker,  25  Fla.  598.     §  195. 
v.  Baltimore    Co.   (Com'rs),  29 

Md.  516.     §65. 
v.  Baltimore    Co.    (Com'rs),  46 

Md.  621.     §  53. 
v.  Barker,  4  Kans   379.     §§  65, 
89,  102. 


State  v.  Barnes,  25  Fla.  298.    §§  39, 

118. 
v.  Barnes,   16  Neb.  37.    §§  78, 

190,  193. 
v.  Barnes,    35    Ohio    St    136. 

§117. 
v.  Baton  Rouge  (Selectmen),  25 

La.  An.  310.    §  184. 
v.  Baxter,  38  Minn.  137.     §  190. 
v.  Bell  Tel.  Company,  23  Fed. 

Rep.  539.     §  25. 
v.  Bell  TeL  Company,  36  Ohio 

St.  296.    §  25. 
v.  Belmont     Co.    (Com'rs),     31 

Ohio  St.  451.    §§  32,  70. 
v.  Beloit  (Sup'rs),  20  Wis.  79. 

§§  129,  219,  234a,  262,  296. 
v.  Beloit  (Sup'rs),  21  Wis.  280. 

§59. 
v.  Benton,  25  Neb.  834.    §§  40, 

41,  105. 
v.  Berg,   76    Mo.   136.    §§  179, 

183,  185,  310. 
v.  Bergen  C.  Pleas  (Judges),  2 

Penn.  737.     §  205. 
v.  Bergen  (Freeholders),  52  N. 

J.  L.   313.    §§  60,  76,   272, 

295,  296. 
v.  Bergenthal,    72    Wis.     314, 

§234. 
v.  Berry,  14  Ohio  St  315.  §§  75, 

184 
v.  Biddle,  36  Ind.  138.    §  215. 
v.  Board  of  Education,  24  Wis. 

683.    §  117. 
v.  Board  of  Health,  49  N.  J.  L. 

349.    §  149. 
v.  Board  of  Liquidators,  23  La. 

An.  388.     §  29. 
v.  Bollinger  Co.  (Just),  48  Mo. 

475.    §  130. 
v.  Bonebrake,     4    Kans.     247. 

§126. 
v.  Bonnell,  119  Ind.  494.    §§  49, 

56,  57, 119. 
v.  Bonnifield,     10     Nev.     401. 

§310. 


CASES    CITED. 


lv 


State  v.  Bordelon,  6  La.  An.  68.  §§  65, 

103,  105,  235. 
v.  Boullt,  26  La.  An.  259.    §§  55, 

134. 
v.  Bowden,  18  Fla.  17.     §  78. 
v.  Bowen,  6  Ala.  511.    §  187. 
v.  Bowker,  4  Kans.  114.     §  135. 
v.  Boyd  (Neb.,  1891),  48  N.  W. 

Rep.  739.     §  97. 
v.  Braden,  40  Minn.  174.     §  99. 
v.  Breese,  15  Kans.  123.     §  215. 
v.  Brewer,  61  Ala.  318.     §  105. 
v.  Bridgman,     8     Kans.     458. 

§§  23,  53,  135. 
v.  Brockwell,     84     Tenn.     683. 

■§190. 
v.  Brown,  28  La.  An.  103.  §  244. 
v.  Brown,  38  Ohio  St.  344.  §  230. 
v.  Buchanan,   24  W.   Va.   362. 

§§  62,  65,  127. 
v.  Buckles,  39  Ind.  272.     §  126. 
v.  Buhler,  90   Mo.  560.     §§  50, 

56,  57,  201. 
v.  Burbank,    22    La.    An.   298. 

§§  66,  68,  71. 
v.  Burgoyne,   7    Ohio  St    153. 

§109. 
v.  Burke,  33  La.  An.  498.     §  89. 
v.  Burke,  33  La.  An.  969.    §  103. 
v.  Burkhardt,  59  Mo.  75.  §§  134, 

242,  243. 
v.  Burnside,  33  S.  C.  276.    §§  33, 

51,  56. 
v.  Burnsville  T.  Co.,  97  Ind.  416. 

§§  3,  62,  253,  290. 
v.  Byers,  67  Mo.  706.    §§  82. 127, 
v.  Callaway  Co.  (Treas.),  43  Mo. 

228.     §  135. 
v.  Camden,    39    N.    J.    L   620. 

§§  34,  86,  230,  252. 
v.  Camden    (Chosen  Freehold- 
ers), 35  N.  J.  L  217.  §§  142, 

152. 
v.  Camden    (Com.    Coun.),    42 

N.  J.  L.  335.     §  143. 
v.  Canal,  etc.  R  R,  23  La,  An. 

333.     8  33. 


State  v.  Cape  Girardeau  C.  P.  Court, 

73  Mo.  560.    §  204. 
v.  Cappeller,   37   Ohio    St.  121. 

§306. 
v.  Carey  (N.  Dak,  1891),  49  N. 

W.  Rep.  164.  §§  37, 230, 262. 
v.  Cardozo,  5  Rich.  (N.  S.)  297. 

§103. 
v.  Carney,  3  Kans.  88.    §  221. 
v.  Cartaret  Club,   40  N.   J.  K 

295.     §  168. 
v.  Gathers,  25  Neb.  250.     §  127. 
v.  Chairman  County  Com'rs,  4 

Rich.  (N.  S.)  485.    §  305. 
v.  Chamber  of  Commerce,   20 

Wis.  63.    §§  166,  168. 
v.  Chase,  42  Mo.  Ap.  343.  §  113. 
v.  Chase,  5  Ohio  St.  528.     §  93. 
v.  Cheraw,  etc.  R   R,  16  S.  C. 

524.     §§  294.  296. 
v.  Chester,    10    N.    J.    L    292. 

§  234a. 
v.  Chicago,  etc.  R.  R,  38  Minn. 

281.     §  290. 
v.  Chicago,  etc.  R.  R,  19  Neb. 

476.     §§  61,  62,  270. 
v.  Chicago,  etc.  R.  R,  79  Wis. 

259.     §  237. 
v.  Cincinnati  (City),  19  Ohio  St. 

178.     §§  248,  322. 
v.  Clark,  52  Mo.  508.    §§  105, 

152. 
v.  Clay  Co.,  46  Mo.  231.     §  130. 
v.  Clayton,    34    Mo.    Ap.    563. 

§212. 
v.  Clementson,     69    Wis.    628. 

§187. 
v.  Cleveland  (Fire  Com'rs),  26 

Ohio  St.  24.     §  147. 
v.  Clinton,    27    La.    An.    429. 

§105. 
v.  Clinton,     28      La     An.     47. 

§§  105,  126. 
v.  Clinton  Co.  (Com'rs),  6  Ohio 

St.  280.     §§129,225. 
v.  Cole,  33  La.  An.  1356.    §  264. 
v.  Cole,  25  Neb.  342.    §  279. 


lvi 


CASES    CITED. 


State  v.  Collins,  5  Wis.  339.     §  189. 
v.  Columbia,  25  S.  C.  582.    §§  87, 

290. 
v.  Columbus  (Board  Educ),  35 

Ohio  St.  368.    §§  115,  228. 
v.  Columbus  (Police  Boai-d).  19 

Weekly  L.  Bui.  317.     §§  69, 

120. 
v.  Commercial  Court  (Judge),  4 

Rob.  227.     §  204. 
v.  Comptroller-Gen.,     4     Rich. 

(N.  S.)  185.     §  71. 
v.  Comptroller-Gen.,     4     Rich. 

(N.  S.)  430.     §  65. 
v.  Cooper  Co.  Court,  64  Mo.  170. 

§§  201,  215. 
v.  County  Canvassers,    17   Fla. 

705.     §  230. 
v.  County    Commissioners,    83 

Ala.  304.     §§  53,  203. 
v.  County  Court,  33  W.  Va.  589. 

§§  31,  201,  269. 
v.  County  Judge,  7  Iowa,  186. 

§  185. 
v.  County  Treasurer,  10  Rich. 

(N.  S.)  40.     §  310. 
v.  Court  Com.  Pleas,  38  N.  J.  L. 

182.    §  187. 
v.  Cover,  50  111.  100.     §  153. 
v.  Cox,  26  Minn.  214.     §  190. 
v.  Craft,  17  Fla.  722.     §§  56,  84, 

123. 
v.  Craig,  69  Mo.  565.     §  76. 
v.  Cramer,  96    Mo.  75.     §§  40, 

119. 
v.  Crete  (Mayor)  (Neb.,  1891),  49 

N.  W.  Rep.  272.    §  228. 
v.  Crites  (Ohio,  1891),  28  N.  E. 

Rep.  178.     §  299. 
v.  Cunningham,    9     Neb.    146. 

§123. 
v.  Curler,  4  Nev.  445.     §  220. 
v.  Curtiss  (Ohio,  1891),  26  N.  E. 

Rep.  1052.    §  296. 
v.  Davenport  (City),  12    Iowa, 

335.     §§  70,  129,  132. 
v.  Davis,  17  Minn.  429.     §  222. 


State  v.  Davis  Co.  (Judge),  2  lows, 

280.     §g  56,  228,  255. 
v.  Deane,  23  Fla.  121.     §§  179. 

292. 
v.  Delafield    (Sup'rs),    64  Wis. 

218.     §  252. 
v.  Delaware,  etc.    Co.,  47  Fed. 

Rep.  633.     §  25. 
v.  Delaware,  etc.  R.  R,  48  N.  J. 

L.  55.     §§  27a,  162. 
v.  Demaree,  80  Ind.  519.     §  116. 
v.  Deslonde,    27    La.    An.    71. 

§102. 
v.  Dike,  20  Minn.  363.    §§  94,  99. 
v.  Dinsmore,  5  Neb.  145.    §  179. 
v.  Dodson,  21  Neb.  218.    §§  152, 

154. 
v.  Dougherty,     45     Mo.      294. 

§§  256,  278. 
v.  Douglas  Co.(Com'rs),  18  Neb. 

506.     §  63. 
v.  Doyle,  40  Wis.  175.     §  102. 
v.  Doyle,  40  Wis.  220.     §§  88, 

102. 
v.  Draper,  48  Mo.  213.     §§  105, 

143,  152. 
v.  Drew,  17  Fla.  67.     §§  93,  94. 
v.  Drew,     32     La.     An.     1043. 

§190. 
v.  Dubuclet,   26    La.   An.    127. 

§§  82,  103. 
v.  Dubuclet,    27    La.    An.    29. 

§  242a. 
v.  Dubuclet.    28    La.     An.    85. 

§§  66,  230. 
v.  Duffy,  7  Nev.  342.     §  115. 
v.  Dunn,     Minor      (Ala.),     46. 

§§  138,  143. 
v.  Dusman,   39  N.    J.    L   677. 

§S  142,  143,  154. 
v.  Eaton,  11  Wis.  29.     §  289. 
v.  Earhart,    35     La.    An.    603. 

§63. 
v.  Earle,  42  N.  J.  L.  94.     §§  87, 

135. 
v.  Eberhardt,     14     Neb.     201. 

§§  109,  224. 


OASES   CITED. 


lvii 


State  v.  Eddy,  10  Mont.  311.    §  212. 
v.  Edwards,   11    Mo.   Ap.    152. 

§283. 
v.  Einstein,   46    N.    J.   L.   479. 

§£  16,  31,  158,  161,  291. 
v.  Elder  (Neb.,  1891),  47  N.  W. 

Rep.  710.     §107. 
v.  Election  Inspectors,  17  Fla. 

26.     §  75. 
v.  Elkinton,   30    N.   J.   L.   335. 

§§  239,  301. 
v.  Ellis,  41   La.  An.  41.     £§  46, 

198,  207. 
v.  Elmore,  6  Cold.  528.     §  215. 
v.  Engelman,  86  Mo.  551.  §§196, 

201. 
v.  Engle,  127  Ind.  457.     §  212. 
v.  Engleman.  45  Mo.  27.    §  209. 
v.  Essex  (Freeholders),  23  N.  J. 

L.  214.     §§  40,  116. 
v.  Eureka  Co.  (Corn'rs),  8  Nev. 

309.     §§  47,  112. 
v.  Everett,  52   Mo.  89.     §§  255, 

269. 
v.  Fairfield  Co.  (C.  P.  Court),  15 

Ohio  St.  377.  §§  65,  220. 
v.  Farris,  45  Mo.  183.  §  176. 
v.  Field,  37  Mo.  Ap.  83.     §§  190, 

296. 
v.  First  Nat.  Bank,  89  Ind.  302. 

§160. 
v.  Flad,  23  Mo.  Ap.  185.     §£  39. 

49. 
v.  Flad,  26  Mo.  Ap.  500.     §  66. 
v.  Floyd   Co.  (Judge),  5  Iowa, 

380.     §S  55,  111. 
v.  Foster,  38  Ohio  St.  599.  §§  93, 

179. 
v.  Fournet.   30    La.   An.    1103. 

§234. 
v.  Francis.   95   Mo.   44.    §§  69, 

120,  230,  294. 
v.  Franklin    Co.    (Corn'rs),    21 

Ohio  St.  648.    §  111. 
v.  Freeman,  24  Fla,  209.     §  315. 
v.  Fremont,  etc.  R.  R.,  22  Neb. 
313.     §  51. 


State  v.  Fuller,  18  S.  C.  246.    §§  13, 51. 
v.  Gamble,   13  Fla.  9.     §§  104, 

153. 
v.  Gaudy,  12  Neb.  232.     §§  135, 

266. 
v.  Garesche,  65  Mo.  480.     §§  31, 

180. 
v.  Gasconade  Co.  Court,  25  Mo. 

Ap.  446.     g  143. 
v.  Gates,  22  Wis.  210.     §§  129, 

130,  131,  238. 
v.  Georgia  Med.  Society,  38  Ga. 

608.     §§  49,  157,  166. 
v.  Gibbs,  13  Fla.  55.     §§  78, 178, 

179,  185,  222,  239.  294,  296. 
v.  Gibson   Co.  (Corn'rs),  80  Ind. 

478.     §  116. 
v.  Goll,  32  N.  J.  L.  285.    §§  165, 

259,  319,  322. 
v.  Goodfellow,  1  Mo.  Ap.  495. 

§  290. 
v.  Governor,  39  Mo.  388.     §§  94, 

255,  259. 
v.  Governor.    25   N.    J.   L.   331. 

§§  94.  99,  223. 
v.  Gracey,  11   Nev.  223.     §§  1, 

21.    51,   61,    221,    230,    245, 

257. 
v.  Grand  Island,  etc.  R.  R.,  27 

Neb.  694.     §§  18,  272,  322. 
v.  Graves,  19   Md.  351.     §§  C6, 

116. 
v.  Greene  Co.  (Corn'rs),  119  Ind. 

444.     g  31. 
v.  Gregory.  83  Mo.  123.    §§  31, 

119. 
v.  Griscom,  3  Halst.  136.    §  299. 
v.  Grubb,  85   Ind.  213.    §§  56, 

57,  229.  260. 
v.  Guerrero,  12  Nev.  105.   §  160. 
v.  Guthrie,  17  Neb.  113.     §§  78, 

23S.  240. 
v.  Haben,  22  Wis.  6fi0.    §  228. 
v.  Hagood,  30  S.  C.  519.     §§  13, 

57.  65. 
v.  Hall.  6  Baxt.  3.     §  215. 
v.  Hall,  3  Cold.  2f5.    §  215. 


hriii 


CASES   CITED. 


State  v.  Hammell.  31  N.  J.  L.  446. 

§134 
v.  Hamilton,  5  Ind.  310.   §§  126, 

230. 
v.  Hamilton  (Com'rs),  20  Ohio 

St.  425.     §  117. 
v.  Hamilton  (Com'rs'),  26  Ohio 

St.  364.    §§36,111,126,203. 
v.  Hannibal,  etc.  R  R,  86  Mo. 

13.     £§  159,  230. 
v.  Hannon,  38  Kans.  593.   §§  17, 

136. 
v.  Hard,  25  Minn.  460.    §§  305, 

315. 
•       v.  Harris,     17     Ohio    St.    608. 

§§  65,  129. 
v.  Hartford,  etc.  R  R,  29  Conn. 

538.     §§  27a,  158,  159. 
v.  Harvey,  14  Wis.  151.    §§  102, 

300. 
v.  Hastings,  10  Wis.  518.   §§  56, 

103,  135. 
v.  Hawes,     43    Ohio     St.     16. 

§§  190,  280. 
v.  Hayne,  8  Rich.  (N.   S.)  367. 

§§  23,  102,  107. 
v.  Hays,  50  Mo.  34.     §  103. 
v.  Hebrew  Congregation,  31  La. 

An.  205.     §  176. 
v.  Helmer,  10  Neb.  25.     §§  135, 

250. 
v.  Henry  Clay  Lodge  (N.    J., 

1891),     22     Atl.     Rep.    63. 

§§  166,  169. 
v.  Henry  Co.  (Com'rs),  31  Ohio 

St.  211.     §  116. 
v.  Hickman,     10     Mont.     497. 

§§  103,  104. 
v.  Highland   (Town),  25  Minn. 

355.     §  128. 
v.  Hill,  20  Neb.  119.     §§  179, 185. 
v.  Hobart,  12  Nev.  408.    §  104. 
v.  Hoblitzelle,  85  Mo.  620.   §  14. 
v.  Hodgeman  Co.  (Com'rs),  23 

Kans.  264.    §  179. 
v.  Hoeflinger,     31     Wis.     257. 

§§  134,  307. 


State  v.  Hoffman,  35  Ohio  St  435. 

§126. 
v.  Holladay,  65  Mo.  76.    §§  105, 

296. 
v.  Hollinshead,  47  N.  J.  L.  439. 

§  229. 
v.  Horner,    16     Mo.    Ap.     191. 

§§  187,  201,  302. 
v.  Howard    Co.,     39    Mo.    375. 

§§  16,  53. 
v.  Howard  Co.  Court,   41  Mo. 

247.     §  152. 
v.  Howe,  28  Neb.  618.    §§  182, 

185. 
v.  Howell    Co.   Court,  58    Mo. 

583.    §  111. 
v.  Hudson,    13    Mo.    Ap.,     61. 

§256. 
v.  Hudson  Co.  (Ch.  Frh'rs),  35 

N.  J.  L.  269.  §§  143, 225, 252. 
v.  Humphreys,  25  Ohio  St  520. 

§§  60,  127. 
v.  Inferior  Court  (Just),  Dud. 

(Ga.)  37.    §  10. 
v.  Jacksonville  (Mayor),  22  Fla. 

21.     §  285. 
v.  Jacobus,  2  Dutch.  135.     §  57. 
v.  Jaynes,  19  Neb.  161.     §§  152, 

154. 
v.  Jefferson  Co.  (Canvassers),  17 

Fla.  707.     §§  221,  230. 
v.  Jefferson    Co.    (Com'rs),    11 

Kans.  66.     §§  62,  228. 
v.  Jefferson  Co.  (Police  Jury), 

22  La.  An.  611.     §  116. 
v.  Jefferson   Co.  (Police  Jury), 

33  La.  An.  29.     §  245. 
v.  Jennings,  48  Wis.  549.  §  128. 
v.  Jennings,  56  Wis.  113.  §§264, 

270,  272,  274. 
v.  Jersey  City  (Board  Finance), 

38  N.  J.  L.  259.     §  225. 
v.  Jersey  City  (Board  Finance) 

(N.   J.,  1890),  20  Atl.  Rep. 

755.     §  227. 
v.  Joint  School  District  65  Wis. 

631.    §§  39,  115,  250. 


CASES   CITED. 


lix 


State  v.  John,  81  Mo.  13.    §  152. 
v.  Johnson,    28   La    An.    932. 

§13. 
v.  Johnson,    29   La.    An.    399. 

§154. 
v.  Johnson  Co.  (Board  Equal.), 

10  Iowa,  157.     §§  130,  243, 

247,  250,  296. 
v.  Johnson  Co.  (Judge),  12  Iowa, 

237.     §§  296,  297,  310. 
v.  Jones,  1  Ired.  129.    §§  234a, 

259,  266. 
v.  Jones,  1  Ired.  414.     §  297. 
v.Jones,   10  Iowa,  65.    §§274, 

284,  288. 


Judge,  15  La.  521. 


198. 


Judge,  38  La.  An.  43.  §  303. 
v.  Judge,  40  La.  An.  206.  §  198. 
v.  Judge,  41  La.  An.  951.  §  198. 
v.  Judges,  29  La.  An.  785.  §  209. 
v.  Judge  3d  District,  6  La.  An. 

484.     §§  198,  273. 
v.  Judge  3d  District,  31  La.  An. 

800.     §  198. 
v.  Judge  4th  District,  17  La  An. 

282.     §  215. 
v.  Judge  4th   District,   19   La. 

An.  4.     §  201. 
v.  Judge  4th  District,  21  La.  An. 

736.     §  198. 
v.  Judge  4th  District,  28  La.  An. 

451.     §  189. 
v.  Judge  6th  District,  28  La.  An, 

905.     §§  187,  198. 
v.  Judge  6th  District,  32  La.  An. 

549.     §  198. 
v.  Judge   13th  District,  23  La 

An.  29.     §  220. 
v.  Judge   26th  District,   24  La 

An.  1177.     §198. 
v.  Jumel,  30  La  An.  339.   §  105. 
v.  Jumel,  31  La  An.  142.   §§65, 

105. 
v.  Juneau  Co.  (Sup'rs),  38  Wis. 

554.     §  215. 
v.  Kansas  City,  etc.  R   R,   77 
Mo.  143.     §§  291,  296. 


State   v.   Kavanagh,   24  Neb.  506. 
§179. 
v.  Kearney  (City),  25  Neb.  262. 

§§  228,  230. 
v.  Kendall,  15  Neb.  262.  §§  204, 

313.       . 
v.  Kenney,  9  Mont  389.  §§  105, 
107,  152. 
Kennington,  10  Eich.  (N.  S.) 

299.     §§129,226. 
Kenosha  Cir.  Judge,  3  Wis. 

809.    §  187. 
Keokuk  (City),  9  Iowa,  438. 

§129. 
King,  29  Kans.  607.    §  302. 
Kinkaid,  23  Neb.  641.     §  201. 
Kirby,  17  S.  C.  81.     §87. 
Kirke,  12  Fla  278.     §§40,41, 

186,  188,  195. 
Kirkley,  29  Md.  85.     §  155. 
Kirman,  17  Nev.  380.    §§  78. 

154 
Kispert,  21  Wis.  387.     §  82. 
Knight,  46  Mo.  83.     §  189. 
Knight,  31  S.  C.  81.    §§  87, 
314. 
v.  Lady  Bryan  M.  Co.  (Trustees), 

4  Nev.  400.     §  165. 
v.  Lafayette  Co.  Court,  41  Mo. 

221.     §§37,47,118. 
v.  Lafayette  Co.  Court,  41  Mo. 

545.     §§  40,  270,  272,  322. 
v.  Lake    City,    25    Minn.    404. 

§128. 
v.  Lancaster,  13  Neb.  223.   §§  62, 

305. 
v.  Larrabee,  3  Wis.  783.    §§  23, 

193. 
v.  Laughlin,  75  Mo.  358.    §§  36, 

46,  61,  203. 
v.  Lawrence,  3  Kans.  95.  §§  102, 

319,  322. 
v.  Layton,  28  N.  J.  L  244.   §  24. 
v.  Lazarus,    36    La    An.    578. 

§198. 
v.  Lazarus,    37    La    An.    589. 
§204. 


v. 
v. 

V. 
V. 

V. 
V. 

V. 
V. 
V. 


lx 


CASES    CITED. 


State  v.  Lazarus,  37  La.  An.  610,  614. 
§204. 
v.  Lean,  9  Wis.  279.  §§  65, 125, 
249,  250,  272,  274,  286,  288. 
v.  Le  Fevre,  25  Neb.  223.  §  84. 
v.  Lehre,  7  Rich.  234.  £  75. 
v.  Leon   (Sup'rs),   66  Wis.  199. 

§  234a. 
v.  Lewis,  71  Mo.  170.     §  208. 
v.  Lewis,  76  Mo.  370.     §§  61, 62, 

264,  309. 
v.  Lewis,  10  Ohio  St.  128.  §111. 
v.  Licking     Co.     (Com'rs),     26 

Ohio  St.  531.     §  117. 
v.  Lincoln  (Mayor),  4  Neb.  260. 

§§  136,  239,  248. 
v.  Liquidation  (Board),  42  La. 

An.  647.     §  93. 
v.  Lubke,  85  Mo.  338.     §  201. 
v.  Lynch,  8  Ohio  St.  347.  §§  78, 

135. 
v.  McArthur,  23  Wis.  427.  §  210. 
v.  McAuliffe,  48  Mo.  112.    §  212. 
v.  McCrillus,  4  Kans.  250.  §§  55, 

135. 
v.  McCullough,     3     Nev.     202. 
§§  22,  143,  165,  177, 279, 261, 
310. 
v.  Macdonald,     30      Minn.    98. 

§190. 
v.  McKinney,  5  Nev.  194.  §§  65, 

121. 
v.  McLeod     Co.     (Com'rs),     27 

Minn.  90.     §  130. 
v.  McMillan,      8     Jones,     174. 

§§111,  282. 
v.  Madison  (City),    15  Wis.  30. 

§§  129,  240. 
v.  Madison  Co.  (Com'rs),  92  Ind. 

133.     §  264. 
v.  Magill.4Kans.114     §135. 
v.  Malcolm,  77  Ga.  671.    §  181. 
v.  Manitowoc,     52    Wis.     423. 

§§  17,  129. 
v.  Manitowoc    Co.    (Clerk),    48 

Wis.  112.    §  307. 
v.  Mantz,  62  Mo.  258.     §  133. 


State  v.  Marietta,  etc.  R.  R,  35  Ohio 
St.  154.     §84. 
v.  Marks,   74  Tenn.  12.     §§  94, 

179,  285,  290. 
v.  Marshall,  82  Mo.  484.     §  53. 
v.  Marshall  Co.  (Judge),  7  Iowa, 
186.      §§  55,   179,  224,  230, 
309. 
v.  Marston,  6  Kans.  524.  §§125, 

228. 
v.  Martin,  38  Kans.  641.     §  93. 
v.  Martin  Co.  (Com'rs),  125  Ind. 

247.     §  30. 
v.  Mason  (La.,  1891),  9  South. 

Rep.  776.     §  102. 
v.  Matley.  17  Neb.  564.     §  242a. 
v.  May  hew,  2  Gill,  487.    §  19. 
v.  Maysville,  12  S.  C.  76.    §  130. 
v.  Meadows,  1  Kans.  90.     §§  65, 

124. 
v.  Meagher,  57  Vt.  398.     §§  85, 

314. 
v.  Meeker,  19  Neb.  444.    §§  152, 

309. 
v.  Meiley,    22     Ohio     St.    534. 

§211. 
v.  Miller,  1  Lea,  596.     §  212. 
v.  Miller,  45  N.  J.  L.  251.   §  143. 
v.  Mills,  27  Wis.   403.     §§  189, 

212«. 
v.  Milwaukee  (Chamber  Com.), 
47  Wis.  670.     §§   157,    168, 
170,  286,  315. 
v.  Milwaukee    (City),    22   Wis. 

397.     §§  260,  294. 
v.  Milwaukee   (City),    25    Wis. 

122.     §§129,237. 
v.  Milwaukee  (Com.  Coun.),  20 

Wis.  87.     §  130. 
v.  Missouri  P.   R.  R.,  38  Kans. 

176.     §  159. 
v.  Mitchell,  31  Ohio  St.  592.  §  65. 
v.  Mobile,  etc.  R.  R,  59  Ala.  321. 

§§  55,  163,  260. 
v.  Moffitt,  5  Ohio,  358.  §§  93, 107. 
v.  Monroe,  41  La.  An.  241.  §198. 
v.  Morgan,  12  La.  118.     §  201. 


CASES   CITED. 


lxi 


State 
v. 
v. 

V. 
V. 

V. 

V. 


V. 


v.  Morris.  103  Ind.  161.     §  283. 

.  Morris,  43  Iowa,  192.     §  116. 

Moseley,  34  Mo.  375.     §§  105, 

153. 
Moss,  35  Mo.  Ap.  441.     §  278. 
Mount,  21  La.  An.  352.  §§  126, 

234a,  236,  291. 
Murphy,  41  La.  An.  526.  §208. 
Murphy,  19  Nev.  89.     §§  47, 

203. 
Murphy,  3  Ohio  C.   C.   332. 

£§  69,  84,  120. 
Nebraska  Tel.  Co.,  17  Neb. 

126.     §§13,25,162. 
Nelson,  21  Neb.  572.     §§  201, 

313. 
Nemaha  County,  10  Neb.  32. 

§§  50,  112. 
New  Albany  (City),  127  Ind. 

22.     §  109. 
New  Haven,   etc.   R.   R,  41 

Conn.  134.     §  159. 
New  Orleans,  34  La.  An.  469. 

§§  75,  129. 
New  Orleans,  34  La.  An.  477. 

§227. 
New  Orleans,  35  La.  An.  68. 

§  240. 
New  Orleans,  etc.  R  R,  25 

La.  An.  413.     §  160. 
New  Orleans,  etc.  R  R,  37 
La.  An.  589.     §§  16,  51,  53. 
New  Orleans,  etc.  R  R,   38 

La.  An.  312.     §  160. 
New  Orleans,  etc.  R  R,  42 

La.  An.  138.     §§  12,  16. 
Newman,  91  Mo.  445.   §§  140, 

153.  285,  288. 
Nicholls,    42    La.    An.    209. 

§  234a. 
Noggle,  13  Wis.  380.     §  190. 
North  E.  R  R,  9  Rich.  247. 

§  159. 
O'Bryan,  102  Mo.  254.     §  204. 
Odd  Fellows  G.  Lodge,  8  Mo. 
Ap.  148.     §  49. 


T. 


V. 


State  v.  Omaha  (Mayor),  14  Neb.  265. 
§§  56,  57. 
v.  Orange    (Com.     Coun.),     31 

N.  J.  L.  131.     §  113. 
v.  Orphans'   Court  (Judge),  15 
Ala.  740.     §§  60,  186,  187, 
201,  204. 
v.  Osborne,    24    Mo.    Ap.    309. 

§115. 
v.  Otoe  Co.  (Com'rs),  10  Neb.  384. 

§82. 
v.  Ottinger,    43    Ohio    St.   457. 

§§  305,  306,  315. 
v.  Ousatonic  W.  Co.,  51  Conn. 

137.     §  158. 
v.  Pacific   (Town   Trustees),  61 

Mo.  155.     §§  130,  260. 
v.  Padgett,  19  Fla.  518.     §  294. 
v.  Palmer,   10  Neb.  203.     §  143. 
v.  Patterson,  11  Neb.  266.   §§82. 

242a. 
v.  Patterson,  etc.  R  R,  43  N.  J. 

L  505.     §§  16,  158. 
v.  Patterson  (Mayor),  35  N.  J.  L. 

196.     §  252. 
v.  Peacock,  15  Neb.  442.   §§  179, 

185. 

v.  Peniston,  11  Neb.  100.     §  24. 

v.  Pennsylvania  R  R,  41  N.  J. 

L.  250.    §§  234, 237, 269,  282. 

v.  Pennsylvania  R  R,  42  N.  J. 

L.  490.     §$177,  237. 
v.  People's,  etc.  Assoc,  43  N.  J. 

L.  389.     §  160. 
v.  Perrine,  34  N.  J.  L.  254.  §§  78- 

81. 
v.  Perry  Co.  (Com'rs),  5  Ohio  St. 

497.     §§  65,  111. 
v.  Perrysbmg  Township  (Board 
of  Educ),  27  Ohio  St.  46. 
§130. 
v.  Philips,  96  Mo.  570.     §§   50, 

80. 
v.  Philips,  97    Mo.   331.     §§  39, 

206,  215. 
v.  Phillips      Co.     (Com'rs),     26 
Kans.  419.     §§  62,  71. 


Ixii 


CASES    CITED. 


v. 
V. 

V. 
V. 


V. 


State  v.  Pierce  Co.  (Sup'rs),  71  Wis. 
321.     §§  288,  290,  294. 
Pitot,  21  La.  An.  336.     §  153. 
Platte  Co.  (Court),  83  Mo.  539. 

§53. 
Powell,  10  Neb.  48.    §  187. 
Powers,  14  Ga.   388.     §§  23, 

194. 
Printing  Commissioners,  18 

Ohio  St.  386.     §  117. 
Puckett,  7  Lea,  709.     §  238. 
Putnam  Co.  (Com'rs),  23  Fla. 

632.     §  116. 
Racine  (City  Coun.),  22  Wis. 

258.     §  224. 
Rahway  (Assessors),  43  N.  J. 
L.  338.     §  20. 
v.  Rahway  (Assessors),  51  N.  J. 

L.  279.     §§  294,  296. 
v.  Rahway  (Com.  Coun.),  33  N. 

J.  L.  110.     §§  138,  224. 
v.  Rahway  (Com.  Coun.),  50  N. 

J.  L.  350.     §  300. 
v.  Railroad,  31  S.  C.  609.    §  67. 
v.  Rainey,  74  Mo.  229.     §  129. 
v.  Randall,  35  Ohio  St.  64.  §  179. 
v.  Redd,  68  Mo.  106.     §  223. 
v.  Republican    R.     B.    Co.,    20 

Kans.  404.    §§  13. 16. 
v.  Republican  V.  R.  R,  17  Neb. 

647.     §§  13,  158. 
v.  Richter,  37  Wis.  275.    §§  121, 

235. 
v.  Ricord,  35  N.  J.  L.  396.    §  109. 
v.  Rightor,    40    La,    An.    852. 

§198. 
v.  Rising,  15  Nev.  164.    §  221. 
v.  Robinson,  1  Kans.  188.   §  110. 
v.  Rodman,  43  Mo.  254.    §§  102, 

140,  182. 
v.  Rombauer,  46  Mo.  155.   §  160. 
v.  Roscoe  (Town),  25  Minn.  445. 

§128. 
v.  Ruark,    34    Mo.     Ap.     325. 

§119. 
v.  Ryan,  2  Mo.  Ap..  303.    §§  268, 
285,  311. 


State 


v.  Sachs  (Wash.,  1891),  26  Pac. 

Rep.  865.    §  195. 
Sachs  (Wash.,  1891),  27  Pac. 

Rep.  1075.     §§  189,  203. 
Saint  Bernard  (Par.  Judge), 

31  La.  An.  794.     §  198. 
Saint  Louis  C.  Court  Judge, 

41  Mo.  598.     §  192. 
Saint  Louis,  etc.  Co.,  21  Mo. 

Ap.  526.     §§  49,  57,  68. 
Saint  Louis,  etc.  R.  Co.,  29 

Mo.  Ap.  301.     §  161. 
,  Salem  Church  (Trustees),  114 

Ind.  389.     §  16. 
Salem  Pleas  (Judges),  9  N.  J. 

L.  246.     §  189. 
Savannah,   etc.   Co.,  26  Ga 

665.     §  159. 
,  Saxon,  25  Fla.  792.     §§  142, 

152,  154. 
Saxton,  11  Wis.  27.     §  125. 
Schaack,  28  Minn.  358.  §  222. 
Schmitz,    36    Mo.    Ap.    550. 

§296. 
School  Districts,  8  Neb.  98. 

§248. 
School  Fund,  4  Kans.   261. 

§66. 
,  School  Land  Com'rs,  9  Wis. 

200.     §  294. 
,  Scott  Co.  (Com'rs),  42  Minn. 

284     §  251. 
Secrest,  33  Minn.  381.     §  75. 
,  Secretary  of    State,   33  Mo. 

293.     §  102. 
Sewannee    Co.    (Com'rs),   21 

Fla.  1.     §  290. 
Shakspeare    (La.,     1890),     S 

South.  Rep.  893.     §  232. 
Shearer,  30  Cal.  645.     §  127. 
Sheboygan    Co.   (Sup'rs),   29 

Wis.  79.     §§  51,  53,  201. 
Shelby  Co.  (Com'rs),  36  Ohio 

St.  326.     §  21. 
,  Sheldon,  2  Kans.  322.     §  190. 
Sheridan,    43    N.    J.   L.   82. 

§§  253, 251,  255,  269, 270,  272. 


OASES   CITED. 


lxiii 


State  v.  Sherwood,  15  Minn.  221. 

§§  143, 152,  153,  154. 
v.  Shreveport  (City),  29  La.  An. 

658.     §§  132,  234. 
v.  Shropshire,     4      Neb.      411. 

§§  125,  212. 
v.  Slavens,  75  Mo.  508.     §  224. 
v.  Slavin,  11  Wis.  153.    §  294. 
v.  Slavonska  Lipa,  28  Ohio  St. 

665.     §§  171,  311. 
v.  Small,  47  Wis.  436.     §  190. 
v.  Smith,  43  111.  219.     §§  105, 

235. 
v.  Smith,  9  Iowa,  334.     §§  297, 

303. 
v.  Smith,  104  Mo.  661.    §§  184, 

285. 
v.  Smith,  105  Mo.  6.     §  205. 
v.  Smith  (Mo.,  1891),  15  S.  W. 

Rep.  614.     §  274. 
v.  Smith,  7  Rich.   (N.   S.)  275. 

§242. 
v.  Smith,  8  S.  C.  127.     §  135. 
v.  Smith,  11  Wis.  65.     §  129. 
v.  Smith,  19  Wis.  531.     §  205. 
v.  Snodgrass,  98  Iud.  546.    §  135. 
v.  Snyder,  98  Mo.  555.     §§  61, 

189. 
v.  Somers,  96  N.  C.  467.    §§  146. 

153. 
v.  Springfield  (School  Dir.),  74 

Mo.  21.     §  115. 
v.  Sportsman's,  etc.  Assoc,  29 

Mo.  Ap.  96.     §  166. 
v.  State  Board  Health,  103  Mo. 

22.    .§§  37,  40,  262,  274. 
v.  State  Canvassers  (Board),  17 

Fla.  29.     §§  179,  182. 
v.  State  Canvassers  (Board),  36 

Wis.  498.     §  179. 
v.  Starling,  13  S.  C.  262.  §§  126, 

135,  136. 
v.  Stearns,  11  Neb.  104.     §§  52, 
178,  179,  184,  185,  255,  315. 
v.  Steen,  43  N.  J.  L.  542.     §§  65. 

143,  241. 
v.  Stevens,  23  Kans.  456.   §  125. 


State  v.  Stewart,  26  Ohio  St  216. 
§184. 
v.  Stock,  38  Kans.  154.     §  314. 
v.  Stockwell,  7  Kans.  98.   §§  10, 

55. 
v.  Stone,  69  Ala.  206.     §  135. 
v.  Stout,  61  Ind.  143.     £§  31. 65. 
v.  Strong,  32  La.  An.  173.  §  184. 
v.  Sumter  Co.  (Com'rs),  20  Fla. 

859.     §  278. 
v.  Sumter  Co.  (Com'rs),  22  Fla. 

1.     §§  280,  283. 
v.  Superior  Court  (Wash.,  1891), 

25  Pac.  Rep.  1007.    §  309. 
v.  Supervisors  (Board),  64  Wis. 

218.     §§  253,  285,  288. 
v.  Taaffe,  25  Mo.  Ap.  446.  §  143. 
v.  Tappan,  29  Wis.  664.     §§  65, 

129. 
v.  Teasdale,  21  Fla.  652.     §§  51, 

147,  148. 
v.  Temperance    B.    Union,    42 

Mo.  Ap.  485.    §§  168,  170. 
v.  Texas  Co.,  44  Mo.  230.     §  40. 
v.  Thatch,  5  Neb.  94.     §  125. 
v.  Thayer,     10     Mo.     Ap.    540. 

§§  196,  313. 
v.  Thayer,  15  Mo.  A  p.  391.  §  194. 
v.  Thayer  (Neb.,  1891),  47  N.  W. 

Rep.  704.     §  93. 
v.  Thompson,  36  Mo.  70.  §§  143, 

153. 
v.  Timken,  48  N.  J.  L.  87.    §68. 
v.  Todd,   4  Ohio,   351.     §§  190, 

213. 
v.  Tolle,  71  Mo.  645.     §  21. 
v.  Towns,  8  Ga,  360.     §  94. 
v.  Trammel  (Mo.,  1891),  17  S.  W. 

Rep.  502.  §§  274,  280,  315. 
v.  Trent,  58  Mo.  571.  §§  24, 15G. 
v.  Turner,  32  S.  C.  348.     §§  83, 

123. 
v.  Union   (Town   Coun.,   N.  J., 

1889),    18    Atl.    Rep.     571. 

§§  135,  234. 
v.  Union  Merchants'  Exchange, 

2  Mo.  Ap.  96.    §  166. 


lxiv 


CASES    CITED. 


State  v.  Union  Township,  42  N.  J.  L. 

531.     §  225. 
v.  Union  Township,  43  N.  J.  L. 

518.     §  296. 
v.  Union  Township,  9  Ohio  St. 

599.     §  253. 
v.  Van  Duyn,  24  Neb.  586.  §230. 
v.  Van  Ells,  69  Wis.  19.     §  212. 
v.  Verner,  30  S.  C.  277.  §§  81.  56. 
v.  Wabash,  etc.  Canal  Trustees, 

4  Ind.  495.     §§  18,  165. 
v.  Walker,  5  Eich.  (N.  S.)  263. 

§125. 
v.  Ware,  13  Oreg.  381.    §  230. 
v.  Warrnoth,  22  La.  An.  1.  §  94. 
v.  Warrnoth,    23    La.    An.    76. 

§§  33,  110. 
v.  Warner,  55  Wis.  271.    §§  102, 

105,  126,  203,  238,  294. 
v.  Warren     Co.     (Trustees),     1 

Ohio  St.  308.     §  57. 
v.  Warren,  etc.  Co.,  32  N.  J.  L. 

439.     §  160. 
v.  Warrick    Co.    (Com'rs).    124 

Ind.  554.     §§  142,  152. 
v.  Washburn,  22  Wis.  99.  §  187. 
v.  Washington    Co.    (Sup'rs),   2 

Chandl.  247.  §§  31,  33,  56. 
v.  Waterman,  5  Nev.  323.  §  241. 
v.  Watertown  (Com.  Coun.).    9 

Wis.  254.     §§  31,  147,  148, 

275. 
v.  Watts,  8  La.  76.     §  187. 
v.  Wear,  37  Mo.  Ap.  325.   §  152. 
v.  Weeks.  93  Mo.  499.     §  279. 
v.  Weld,  39  Minn.  426.     §§  224, 

228,  230,  296. 
v.  Wellman,  83  Me.  282.     §  116. 
v.  West    Baton    Rouge    (Prob. 

Judge),  8  Rob.  193.  §  198. 
v.  Whitcomb,     28     Minn.     50. 

§§  94,  106. 
v.  White,  82  Ind.  278.     §  115. 
v.  Whittemore,    11     Neb.     175. 

§  184. 
v.  Whittemore,     12    Neb.    252. 

§  121. 


State  v.  Whittet,  61  Wis.  351.  §§  189, 

190. 
v.  Whitworth,  76  Tenn.  (8  Lea), 

594.     §§  53,  65,  127,  133. 
v.  Wickham,  65  Mo.  634.   §§  51, 

53,  194,  283. 

v.  Wier  (Neb.,  1891),  49  N.  W. 

Rep.  785.     §§  132,  234a. 
v.  Williams,  69  Ala.  311.    §§  10, 

29,  186,  196,  204,  267. 
v.  Williams,     25      Minn.     340. 

§153. 
v.  Williams,  95  Mo.  159.    §§  31, 

178.  179,  183. 
v.  Williams,  96  Mo.  13.     §§  14, 

242,  274.  280. 
v.  Williams,  99  Mo.  291.    §§  140, 

153,  242a,  243. 
v.  Wilmington  (Com.  Coun.),  3 

Har.  294.     §  40. 
v.  Wilmington  B.   Co.,  3  Harr. 

312.     §§  53,  159,  246. 
v.  Wilson,  17  Wis.  687.     §§  109, 

126,  129. 
v.  Winn,  19  Wis.  304.     §  121. 
v.  Wood  Co.  (Sup'rs),  41  Wis.  28. 

§116. 
v.  Wright,  4  Nev.  119.     §§  31, 

201,  202.  205,  313. 
v.  Wright,  10  Nev,  167.     §§  53, 

54,  165,  224,  242a,  248,  255. 
v.  Wrotnowski,  17  La.  An.  156. 

§  102. 
v.  Yeatman,   22   Ohio  St.    546. 

§126. 
v.  Young,  38  La.  An.  923.  §§  12, 

198. 
v.  Zanesville,  etc.  Co.,  16  Ohio 

St.  308.     §§  16.  57,  319,  322. 
State   ex  rel.   Nabor,   7    Ala.    459. 

§199. 
State  ex  rel.  Stow,  51  Ala.  69.    §  204. 
State  Board  of  Educ.  v.  West  Point, 

50  Miss.  638.     §§  29,  56. 129, 

130,  255,  296. 
Steele  v.  County  Com'rs,  83  Ala.  304. 

§116. 


CASES    CITED. 


lxv 


Stevenson  v.  Summit  (Dist.  Town), 
35  Iowa,  462.     §§  129,  130. 
Steward  v.  Eddy,  7  Mod.  143.  §  189. 

v.  Peyton,  77  Ga.  668.     §  181. 
Stewart  v.  St.  Clair  Co.   (Just.),  47 

.      Fed.  Rep.  482.     §  314. 
Stock  Exchange  v.  Board  of  Trade, 

127  111.  153.     §  25. 
Stockton,  etc.  R.  R.  v.  Stockton,  51 

Cal.  3?s.     §  40. 
Stoddard   v.    Benton,    6  Colo.    508. 

§§  228,  229. 
Stone  v.  McCann,  79  Cal.  460.  §  204. 
v.  Small,   54  Vt.   498.     §§   143, 

154. 
Stonesifer  v.   Armstrong,    86   Cal. 

594.     §  192. 
Stout  v.  Hopping,  17  N.  J.  L.  471. 

§187. 
Street    v.    Gallatin     Co.    (Coin  rs), 

Breese,  25.     §§  147,  148. 
Strong,    Petitioner,    20    Pick.   484. 

§§  140.  146,  242a. 
Strong's  Case,  Kirby,  345.     §  124. 
Sturgis  v.   Joy,   2    El.    &  Bl.   739. 

§187. 
Sullivan  v.  Peckham,  16  R.  I.  525. 

§§  75,  127. 
Supervisors  v.  People,  24  111.  A  p. 

410.     §  111. 
v.  United   States,  4  Wall.  435. 

§34. 
v.  United  States,  18  Wall.  71. 

§§  13,  50,  60,  129,  218. 
Supreme  Council  v.  Garrigues,  104 

Ind.  133.     §  169. 
Swanbeck  v.  People,  15   Colo.  64. 

§  255. 
Swann  v.  Buck,  40  Miss.  268.    §§  65, 

105. 
v.  Gray,  44  Miss.  393.     §§  118, 

245,  249,  267,  268,  270. 
v.  Work,  24  Miss.  439.     §  105. 
Swartz  v.  Lange  (Kans.,   1891),   22 

Pac.   Rep.   992.     §§   56,   82, 

143. 
v.  Nash,  45  Kans.  341.    §  190. 


T. 

Talcott  v.  Harbor  Com'rs,  53  Cal. 

199.     §  222. 
Taylor,  Ex  parte,  5  Ark.  49.     §  111. 
Taylor,  Ex  parte,  14  How.  3.   §K  187, 

248,  261,  322. 
Taylor  v.   Gillette,    52    Conn.   216. 

§189. 
v.  Hall.  71  Tex.  206.     §  89. 
v.  McPheters,    111    Mass.    351. 

§75. 
v.  Moss,  35  Mo.  Ap.  470.     §  291. 
Tarver  v.  Tallapoosa  (Com'rs  Court), 

17   Ala.  527.     §§  34,  55,  56, 

129. 
Tawas,  etc.  R.  R  v.  Iosco  Circuit 

Judge,  44  Mich.  479.    §§  10, 

52,  55,  200.  214. 
Telegraph   Co.  v.  Texas,  105  U.  S. 

460.     §  25. 
Temple  v.  Superior  Court,  70  Cal. 

211.     §203. 
Ten  Eyck  v.  Farlee,  16  N.  J.  L.  348. 

§205. 
v.  Farlee,  1  J.  Harr.  (N.  J.)  269. 

348.     §  206. 
Tennant   v.  Crocker,  85   Mich.  328. 

§§  62,  63,  64,  75,  310. 
Tennessee,  etc.  R  R.  v.  Moore,  36 

Ala.  371.     §§  65,  93. 
Terhune  v.  Barcalovv,  11   N.   J.  L. 

38.     §  212. 
Territory  v.  Cole,  3  Dak.  301.  §  229. 
v.  Judge  District  Court,  5  Dak. 


275. 


§§  203,  204. 


v.  Ortiz,  1  N.  Mex.  5.    §  204. 
v.  Potts,   3  Mont.    364.     §§  93, 

245,  264,  314. 
v.  Shearer,  2  Dak.  332.     §  154. 
v.  Woodbury  (N.  Dak.,  1890),  44 

N.  W.  Rep.  1077.     §  72. 
Thomas  v.   Armstrong,  7  Cal.  286. 

§§  31,  39,  119. 
v.  Hamilton    Co.    (Auditor).    0 

Ohio  St.  113.     §§23,  133. 
v.  Smith,  1  Mont  21.  §§  126,  135. 


lxvi 


CASES    CITED. 


Thomason   v.   Justices,  3  Humph. 

233.     §  143. 
Thompson,   Ex   parte,   6  A.   &  E. 

(N.  S.)  721.     §  293. 
Thompson    v.   United    States,    103 
U.  S.  480.     §§  238,  279,  290, 
303. 
Thornton,   Ex  parte,   46  Ala.   384. 

§199. 
Thornton    v.    Hoge,    84    CaL    231. 

§§  32,  187,  190. 
Thorpe  v.  Keeler,  3  Hair.  (N.  J.)  251. 

§206. 
Tilden  v.  Sacramento  Co.  (Sup'rs), 

41  Cal.  68.     §§  32,  37,  126. 
Tobey    v.    Hakes,    54    Conn.    274. 

§S  16,  160. 
Towle  t.  State,  3  Fla.  202.     §  104 
Townes    v.    Nichols,    73    Me.    515. 

§§  56,  64,  81,  160. 
Townsend's  Case,  1  Lev.  91.     §  137. 
Townshend    v.    Mclver,     2    Rich. 

(N.  S.)  25.     §  160. 
Trapnall,  Ex  parte,  6  Ark.  9.   §§  10, 

189. 
Treadway  v.  Wright,  4  Nev.   119. 

§46. 
Treat    v.    Middletown    (Town),    8 

Conn.  243.     §  116. 
Tremont  School  Dist.  v.  Clank,  33 

Me.  482.     §  135. 
Trenton,  etc.  Co.,  In  re,  20  N.  J.  L. 

659.     §§  53,  158,  159. 
Trinity,  etc.  R.  R.  v.  Lane,  79  Tex. 

643.     §  192. 
Trustees  of  Canal  (Board)  v.  People, 

12  111.  248.     §  269. 
Trustees  Rugby  Charity,  Ex  parte, 

9  D.  &  R.  214.     §  22. 
Tucker  v.   Iredell  (Just),  1  Jones, 

451.     §g  255,  292,  315,  322. 
Tuolumne  Co.   v.  Stanislaus  Co.,  6 

Cal.  440.     §§  126,  310. 
Turner,  In  re,  5  Ohio,  542.     §§  10, 

61. 
Turner    v.    Malony,    13  Cal.    621. 
§§  104,  153. 


Turnpike  Co.  v.  Brown,  8  Baxt.  490. 

§94. 
Tyler  v.  Hamersley,  44  Conn.  393. 

§309. 

U. 

Union  Church  v.  Sanders,  1  Houst. 

100.     §§  22,  49. 
Union  Colony  v.  Elliott,  5  Colo.  371. 

§§  188,  204. 
Union   Co.   Court  v.  Robinson,  27 

Ark.  116.     §  187. 
Union  P.  R.  R.  v.  Davis  Co.  (Com'rs), 

6  Kans.  256.     §  128. 
v.  Hall,  91  U.  S.  343.    §  220. 
Uniontovvn  (Borough)  v.  Common- 
wealth,   34    Pa    St.    293. 

§116. 
United  States,  Ex  parte,  16  Wall. 

699.     §  203. 
United  States  v.  Addison,  22  How. 

174.     §§305,308,309. 
v.  Ames,  99  U.  S.  35.    §  269. 
v.  Badger,  6  Biss.  308.     239. 
v.  Bank      of      Alexandria,      1 

Cranch,  C.  C.  7.     §  51. 
v.  Bayard,    15  Dist.    Col.    370. 

§100. 
v.  Bayard,    16   Dist    Col.    428. 

§274. 
v.  Black,  128  U.  S.  40.     §§  100, 

101,  109,  216,  217. 
v.  Blaine,  139  U.  S.  306.    §§  100, 

101. 
v.  Boutwell,    3   MacArth.    172. 

§100. 
v.  Boutwell,     17     Wall.      607. 

§§  223,  224,  238. 
v.  Brooklyn    (Town),    10    Biss. 

466.     §  225. 
v.  Buchanan   Co.,  5  Dili   285. 

§§  111,  130,  298. 
v.  Clark  County,  95  U.  S.  769. 

§§  50,  285. 
v.  Columbian      Ins.      Co.,      2 
Cranch,  C.  C.  266.    §  309. 


CASES   CITED. 


lxvii 


United  States  v.  Commissioner,  5 
Wall.  563.     §  31. 
v.  Dubuque  Co.  (Com'rs),  Mor- 
ris, 31.     §239. 
v.  Elizabeth  City,  42  Fed.  Rep. 

45.     §§222,260. 
v.  Fossatt,  21  How.  445.     §  189. 
.    v.  Galena  (City),    10   Biss.  263. 
§§  20,  130,  132. 
v.  Gomez,  3  Wall.  752.     §§  208, 

216. 
v.  Guthrie,  17  How.  284.  §§  100, 

101. 
v.  Guthrie,  58  U.  S.  284.     §  306. 
v.  Hall,  18  Dist.  Col.  14.     §  101. 
v.  Jefferson  County,  5  Dill.  310. 

§129. 
v.  Kendall,  5  Cranch,  C.  C.  385. 

§§  297,  300. 
v.  Kendall,  12  Pet.  524.     §  217. 
v.  Lawrence,  3  Dal.  42.     §  187. 
v.  Lee  County,  2  Biss.  77.  §§  218, 

219,  266. 
v.  Lincoln  County  (Just),  5  Dill. 

184.     §§  20,  129. 
v.  Lynch,  137  U.  S.  280.     §  100. 
v.  Macon  County,  99  U.  S.  582. 

§129. 
v.  New   Orleans,   98  U.  S.  381. 

§§  129,  131,  218. 
v.  New  Orleans,  2  Wood,  C.  C. 

230.     §60. 
v.  Oswego  (To%vn),  28  Fed.  Rep. 

55.     §§218,314. 
v.  Ottawa  (Board  Aud.),  28  Fed. 

Rep.  407.     §  314. 
v.  Pearson,    32  Fed.  Rep.  309. 

§217. 

v.  Peters,  5  Cranch,  115.    §  189. 
v.  Raum,  135  U.  S.  200.     §§  31, 

32,  100,  101,  109. 
v.  Schurz,  102  U.  S.  378.  §§  101, 

234,  310. 
v.  Silverman,  4  Dill.  224.  §  218. 
v.  Stirling  (City),   2  Biss.   408. 
§130. 


United  States  v.  Union  Pac.  R.  R,  2 

Dill.  527.     §  217. 
v.  Union  Pac.  R.  R,  4  Dill.  479. 

§294. 
v.  Whitney,   16   Dist.    Col.  370. 

§30. 
v.  Windom,    137     U.     S.    636. 

§§31,  101. 

Y. 

Vanderveer  v.  Conover,  16  N.  J.  L 

271.    §187. 
Van  Etten  v.  Butt  (Neb.,  1891),  49 

N.  W.  Rep.  365.     §  190. 
Van  Norman  v.  Circuit  Judge,  45 

Mich.  204.     §  200. 
Van  Rensselaer  v.  Sheriff,  1  Cow. 

501.     §§  73,  123. 
Van  Vabry  v.  Staton,  88  Tenn.  334. 

§190. 
Van  Vranken  v.  Gartner,  85  Mich. 

140.     §200. 
Vail  v.  People,  1  Wend.  38.      §  285. 
Vicksburg  (Mayor)  v.  Rainwater,  47 

Miss.  547.     §§  140,  184. 
Vicksburg  R  R  v.  Lowry,  61  Miss. 

102.     §  94. 
Vincent  v.   Bowes,   78    Mich.   315. 

§§  41,  187,  188. 
Virginia  v.   Rives,   100  U.  S.  313. 

§§  40,  186,  188. 
Virginia  Commissioners,  Ex  parte, 

112  U.  S.  177.     §§  51,  209. 
Virginia,  etc.  R.  R  v.  Ormsby  Co. 

(Com'rs),  5  Nev.  341.   §  111. 
Von  Hoffman  v.  Quincy  (City),  4 

Wall.  535.     §  20. 


w. 

Wabash,    etc.   Canal  (Trustees)  v. 

Johnson,  2  Ind.  219.    §109. 
Wachtel  v.  Noah  Widows',  etc.  Soc, 

84  N.  V.  28.     §  168. 
Wallcott  v.  Mayor,  51  Mich.  249.  §  87. 


lxviii 


CASES    CITED. 


Waldron  v.  Lee,  5  Pick.  323.    §§  83, 

135. 
Walker,  Ex  parte,  54  Ala.  577.  §  199. 
Walker  v.   Wainwright,   16   Barb. 

486.     §  176. 
Walker's  Case,  Cas:  Temp.  Hardvv. 

212.     §175. 
Walkley    v.    Muscatine    (City),    6 

Wall.  481.     §§  43,  218. 
Walls  v.  Palmer,  64  Ind.  493.  §§  195, 

216. 
Walter    v.    Belding,    24     Vt.    658. 

§§  24.  154. 
Walter  Brothers,  89  Ala.  237.  §  189. 
Ward  v.  Curtis.  18  Conn.  290.  §  123. 
v.  Flood,  48  Cal.  36.  §§115, 285. 
Ware,  Ex  parte.  48  Ala.  223.  §  199. 
v.  McDonald,  62  Ala.  81.  §  208. 
Warner  v.  Myers,  4  Oreg.  72.    §§23, 

142,  154,  155. 
Warren  Co.  (Sup'rs)    v.   Klein,  51 

Miss.  807.     §§  129,  130. 
Washington   I.    Co.   v.   Kansas    P. 

R  R,  5  Dill.  489.     §  315. 
Washington  University  v.  Green,  1 

Md.  Ch.  97.     §  43. 
Washoe  Co.   (Com'rs)  v.  Hatch,  9 

Nev.  357.     §§  55,  155. 
Watts  v.  Carroll  (Pol.  Jury),  11  La. 

An.  141.     §  224. 
v.  Port  Deposit  (Pres.),  46  Md. 

500.     §  305. 
Weber  v.  Lee  County,  6  Wall.  210. 

§§  217.  218,  312. 
v.    Zimmerman.     23     Md.    45. 

§§  290,  297,  300,  312. 
Webster  v.  Newell,  66  Mich.  503. 

§§42,  106. 
Weeden  v.  Richmond   (Council),  9 

R  I.  128.     §§  37,  178. 
Weeks  v.  Smith,  81  Me.  538.     §  229. 
Welch  v.  St.  Genevieve,  1  Dill.  130. 

§218. 
Wrstbrook  v.  Wicks,  36  Iowa,  362. 

§  215. 
Western   II.    I.   Co.   v.  Wilder,   40 

Kans.  561.     §  106. 


Western  R  R.  v.  De  Graff,  28  Minn.  1. 

§94. 
Weston  v.  Dane,  51  Me.  461.    §§  89, 

103. 
Wheeler  v.  Northern   C.  I.  Co.,  10 

Colo.  583.     §§  253,  270,  294. 
Wheelock  v.  Auditor,  130  Mass.  486. 

§53. 
White    v.   Brownell,   2    Daly,  329. 

§§  49,  173. 
v.  Buskett,  119  Ind.  431.    §§  187, 

189. 
v.  Holt,  20  W.  Va.  792.     §§  220, 

273. 
White  River   Bank,    In  re,  23  Vt. 

478.     §§  24,  234a,  252. 
White's  Case,  6  Mod.  18.     §  195. 
White's  Creek  T.  Co.  v.  Marshall,  2 

Baxt.  104.     §§  42,  43. 
Whitfield    v.    Greer,    3    Baxt    78. 

§215. 
Whittington,  Ex  parte,  34  Ark.  394. 

§§  34,  313. 
Widdrington's  Case,  1  Lev.  23.    §§  6, 

175. 
Wigginton  v.  Markley,  52  Cal.  411. 

§121. 
Wiley,  Ex  parte,  54  Ala.  226.  §§  148, 

149. 
Wilkins  v.   Mitchell,   3    Salk.  229. 

§51. 
Wilkinson  v.  Cheatham,  43  Ga.  258. 

§  129. 
Willard  v.  Superior  Court.  82  Cal. 

456.     §  187. 
Willeford    v     State,    43    Ark.    62. 

§§  108,  178. 
Williams  v.  Clayton   (Utah,  1889), 

21   Pac.    Rep.    398.     §§  53, 

153. 
v.  County    Commissioners,    35 

Me.  345.     §  29. 
v.  Judge.  27  Mo.  225.     §  51. 
v.  Mutual    Gas    Co.,   52    Mich. 

499.     §  27. 
v.  Saunders,  5  Cold.  60.     §  189. 
v.  Smith,  6  CaL  91.    §  123. 


CASES    CITED. 


lxix 


"Williamsburgh  (trustees).  In  re,  1 

Barb.  34.     §§  53,  284 
Williampport    (City)    v.    Common- 
wealth.    90     Pa.     St.    498. 

§§  61,  62,  129,  132,  135. 
Winstanley  v.  People,  92  111.  402. 

§  242. 
Winston  v.    Moseley,    35  Mo.    146. 

§§  105,  153. 
Winter  v.    Baldwin,    89  Ala.   483. 

§161. 
Winters  v.    Burford,   6  Cold.   328. 

§§  13,  57,  123,  256. 
Wintz   v.  Board  of  Education,  28 

W.  Va.  227.     §§  31,  115. 
Wise  v.  Bigger.  79  Va.  269.     §;$  109, 

228,  230,  270. 
Withers  v.  State,  36  Ala.  252.  §§195, 

255,  305. 
Woffenden,  In  re,  1  Ariz.  237.  §§  21, 

30. 
Wolfe    v.    McCaull.    76    Va.    876. 

§  109. 
Wolff  v.  New  Orleans,  103  U.  S.  358. 

§20. 
Wood  v.  Farmer,  69  Iowa,  533.  §  77. 
v.  Strother,  76  Cal.  545.     §§  47, 

313. 
Woodbury    v.    County  Oom'rs,   40 

Me.  304.    S  77. 


Woodruff,   Ex   parte.   4   Ark.    630. 

§297. 
Woodruff  v.  New  York,  etc.  R.  R., 

59  Conn.  63.     §§  246.  274. 
Worcester  v.  Schlesinger,  16  Cray, 

166.     §  34. 
Wormwell  v.  Hailstone,  6  Bing.  668. 

§19. 
Wren  v.  Indianapolis  (City),  96  Ind. 

206.     §  237. 
Wright    v.    Fawcett,     Burr.    2041. 

§§  276,  277. 
v.  Johnson,  5  Ark.  687.     §§  189, 

273. 


Y. 


Yeager,    Ex  parte,   11    Gratt.   655. 

§119. 
York    v.   Ingham,    57    Mich.    421. 

§200. 
York,  etc.  R.  R.  v.  Queen,  1  El.  & 

Bl.  858.     §  159. 
Yost  v.  Gaines,  78  Tenn.  576.   §  228. 
Younger  v.  Supervisors,  68  Cal.  241. 

§37. 


Zanone  v.  Mound  City,  103  111.  552. 

§40. 


MANDAMUS. 


CHAPTEE  1. 

DEFINITION  AND  HISTORY  OF  THE  WRIT  OF  MANDAMUS. 

§  1.  Definition  of  the  writ  of  mandamus. 

2.  Origin  of  the  writ 

3.  The  writ  is  a  common-law  writ 

4.  Formerly  no  traverse  was  allowed. 

5.  When  a  traverse  was  allowed  to  the  return. 

6.  English  common  law  as  adopted  in  America. 

7.  Statute  of  Anne  adopted. 

8.  Extension  of  the  writ  in  England. 

9.  Uncertainty  as  to  the  limits  of  its  use. 

§  1.  Definition  of  writ  of  mandamus. —  A  writ  of  mcm- 
<damus  is  defined  to  be  a  command,  issuing  in  the  king's 
name  from  the  court  of  king's  bench,  and  directed  to  any 
person,  corporation,  or  inferior  court  of  judicature  within 
the  king's  dominions,  requiring  them  to  do  some  particular 
thing,  therein  specified,  which  pertains  to  their  oflice  and 
duty,  and  which  the  court  of  king's  bench  has  previously 
determined,  or  at  least  supposes,  to  be  consonant  to  right 
and  justice.1  It  is  also  said  that  a  writ  of  mandamus  is 
directed  to  some  person,  corporation,  or  inferior  court,  re- 
quiring them  to  do  some  particular  thing,  therein  specified, 
which  appertains  to  their  office  or  duty,  and  which  is  sup- 
posed to  be  consonant  to  right  and  justice,  and  where  there 
is  no  other  adequate  specific  remedy.2  Lord  Mansfield  said : 
"Where  there  is  a  right  to  execute  an  office,  perform  a  serv- 
ice or  a  function,  or  exercise  a  franchise  (more  especially  if 
it  be  a  matter  of  public  concern  or  attended  with  profit), 

13  Black.  Com.  110.  2  Kendall  v.  United  States,  12  Pet  524 

1 


2  DEFINITION   AND    HISTORY.  [§§  2,  3. 

and  a  person  is  kept  out  of  possession  or  dispossessed  of 
such  right,  and  has  no  other  specific  legal  remedy,  this 
court  ought  to  assist  by  a  mandamus,  upon  reasons  of  jus- 
tice, as  the  writ  expresses,  and  upon  reasons  of  public  policy, 
to  preserve  peace,  order  and  good  government.1  The  stat- 
utory definition  adopted  by  a  number  of  states  is  that  the 
writ  runs  to  an  inferior  tribunal,  board,  corporation  or  per- 
son to  compel  the  performance  of  an  act  which  the  law 
specially  enjoins  as  a  duty  resulting  from  an  office,  trust 
or  station.2 

§  2.  Origin  of  the  writ. —  The  writ  of  mandamus  was 
issued  as  early  as  the  fourteenth  and  fifteenth  centuries.5 
Then  it  was  a  mere  letter  missive  from  the  sovereign  power, 
commanding  the  party  to  whom  it  was  addressed  to  per- 
form a  particular  act  or  duty.  No  return  to  it  was  allowed, 
and  disobedience  thereof  was  punished  by  attachment.  At 
length  it  obtained  the  sanction  of  an  original  writ,  and  was 
issued  from  the  court  of  king's  bench,  where  the  king  once 
presided,  and  where  in  fiction  of  law  he  is  always  present. 
It  was,  however,  rarely  used  till  the  latter  part  of  the 
seventeenth  century. 

§  3.  The  writ  of  mandamus  is  a  common-law  writ.— 
The  writ  has  been  issued  from  a  court  of  chancery,*  but 
such  practice  has  been  long  since  abandoned,  and  it  is  now 
issued  only  out  of  a  common-law  court,5  and  is  considered 
to  be  exclusively  a  common-law  remedy,6  with  which  equity 
has  nothing  to  do.7  A  court  of  equity  cannot  issue  an  in- 
junction to  stay  proceedings  by  mandamus,  since  the  writ  is 
not  remedial  but  mandatory,  and  issues  from  a  superior  court 

i  Rex  v.  Barker.  3  Burr.  1265.  429 ;    Rioters  Case,    1   Vera.    175 ; 

2  Stat-?  v.   Gracey,  11  Nev.  223;  Crane,  Ex  parte,  5  Pet  190.      _ 

Boges  v.  C,  B.  &  Q.  R  R.,  54  Iowa,  » By    statute    in    some    states  a 

435 ;    Fremont  v.  Crippen,  10  Cal.  chancery  court  can  issue  the  writ. 

2H.  6 Heine  v.  Levee  Commissioners, 

^R.     v.     Caml nidge   University,  19  Wall.  655 ;  Chumasero  v.  Potts, 

Fort  202;   Rex  v.   Dr.   Gower,    3  2  Mont   242;    State    v.   BurnsvUle 

Balk.  230.  T.  Co.,  97  Inch  416. 

*  Coventry  (Mayor),  Ca°e  of,  2  Salk-  »  Gay  v.  Gilmore,  76  Ga  725. 


§§  4^-6.]  DEFINITION   AND    HISTOKT.  3 

of  common  law,  which  has  great  latitude  and  discretion  in 
such  cases,  and  can  judge  of  all  the  circumstances,  and  is 
not  bound  by  such  strict  rules  as  in  the  case  of  private 
rights.1 

§  4.  Formerly  no  traverse  was  allowed  to  the  return.— 
Formerly  no  traverse  was  allowed  to  the  return  to  the  rule 
to  show  cause  why  a  mandamus  should  not  issue,  or  to  the 
alternative  writ,  which  ordered  performance  of  the  act  or 
to  show  cause  why  the  act  should  not  be  done.  If  the  re- 
turn showed  a  sufficient  legal  reason  for  not  doing  the  act, 
the  writ  was  refused.  The  only  remedy  open  to  the 
petitioner  was  to  bring  an  action  for  damages  for  a  false 
return.  If  the  petitioner  prevailed  in  such  action,  the  per- 
emptory writ  of  mandamus  was  issued  at  once. 

§  5.  When  traverse  allowed  to  the  return. — By  the 
statute  of  9th  Anne  (ch.  20)  a  traverse  of  the  return  was 
permitted  in  cases  where  the  contest  was  for  municipal 
office,  and  by  the  act  of  1  Wm.  IV.  (ch.  21)  a  traverse  of 
the  return  was  permitted  in  all  cases,  thus  dispensing  with 
the  necessity  for  an  action  for  a  false  return. 

§  6.  English  common  law  as  adopted  in  America. —  The 
states  of  the  American  Union  have  adopted  the  English 
common  law,  but  generally  of  a  period  when  the  writ  of 
mandamus  had  been  but  little  used,  and  the  principles  gov- 
erning its  issuance  had  not  been  formulated.  The  period 
selected  was  generally  the  early  part  of  the  reign  of  James  I., 
just  prior  to  the  settlement  of  Jamestown,  Virginia.  This 
period  is  prior  to  the  occurrence  of  Bagg's  Case,  which  has 
often,  though  erroneously,  been  considered  to  be  the  first 
case  wherein  a  mandamus  was  issued.2  The  common  law 
is  generally  accepted  as  binding  upon  this  country  as  it  ex- 
isted prior  to  the  beginning  of  the  fourth  year  of  the  reign  of 
James  I.     He  ascended  the  English  throne  March  24,  1603. 

1  Lord  Montague  v.  Dudrnan,  2  R.  v.  Cambridge  University,  Fort. 
Ves.  Sr.  396.  202 ;  Widdrington's  Case,  1  Levinz, 

2  Queen  v.  Heathcote,  10  Mod.  48 ;    23 ;  R.  v.  Dr.  Gower,  3  Salk.  230. 


4  DEFINITION    AND    HISTORY.  [§§  7-9. 

§  7.  Statute  of  Aime  adopted. —  However,  the  various 
states  have  enacted  the  statute  of  9th  Anne  (ch.  20),  am- 
plified by  allowing  a  traverse  in  all  cases,  or  have  adopted 
legislation  of  a  similar  nature. 

§8.  Extension  of  the  writ  in  England. —  In  England  stat- 
utes have  been  adopted  allowing  writs  of  mandamus  under 
certain  circumstances,1  but  those  writs  are  distinguished 
from  the  ancient  writ,  which  is  called  in  England  the  pre- 
rogative writ  of  mandamus,  and,  in  America,  simply  the  writ 
of  mandamus.  The  following  pages  will  treat  only  of  the 
latter  writ  as  enforced  in  England  and  America. 

§  9.  Uncertainty  as  to  the  limits  of  its  use. —  It  will  be 
seen  that,  from  the  generality  of  the  definitions  of  the  ap- 
plicability of  this  writ,  the  courts  may  come  to  very  dif- 
ferent conclusions,  in  the  various  cases  arising,  as  to  the 
propriety  of  granting  it.  In  Bacon's  Abridgment  it  is  said 
that  it  is  hardly  possible  to  fix  any  general  rule  as  to  when 
the  writ  will  be  granted,  and  the  cases  relative  to  contests 
for  office  are  given  without  any  attempt  to  reconcile  them.2 
Blackstone  does  not  even  attempt  to  define  the  cases  in 
which  the  courts  have  granted  the  writ.  Like  all  rules  of 
law  which  have  been  generally  developed  by  the  courts,  its 
course  has  been  attended  with  fluctuations  of  opinion.  It 
has  even  been  asserted  that  the  courts  have  purposely  left 
the  matter  open.3 

1  To    examine    witnesses  in  the  under  the  Judiciary  act  of  1873,  by 

English  colonies :    13  Geo.  III.,  and  interlocutory  order. 

1  Will.   IV. ;    allowing    writs    of  2  Bacon's  Ab.,  Title  Mand  C. 

mandamus  in  nearly  all  civil  ac-  3Att'y-Gen.  v.  Boston,  123  Mass. 

tions:    17  and   18    Victoria;     and  460. 


CHAPTER  2. 

NECESSITY  THE  ORIGIN  OF  THE  WRIT. 

§  10.  No  other  remedy. 

11.  Remedy  required  where  there  is  a  right. 

12.  Increasing  the  uses  of  the  writ 

§  10.  No  other  remedy.—  Without  this  writ  there  are 
many  wrongs  which  the  law  could  not  adequately  redress. 
It  was  created  to  satisfy  this  exigency,  but  not  to  interfere 
with  the  ordinary  administration  of  justice.  Accordingly 
the  reasons  given  for  its  issuance  are:  that  there  is  no 
remedy  provided  by  law  for  the  wrong,  but  in  justice  and 
good  government  there  ought  to  be  a  remedy ; 1  because 
there  is  no  other  adequate  remedy ; 2  to  prevent  a  defect  of 
justice3  and  a  defect  of  police;4  to  preserve  peace,  order 
and  good  government ; 5  to  prevent  a  failure  of  justice ; c  or 
because  there  is  a  right  and  no  other  remedy.7  The  right, 
coupled  with  the  necessity  of  such  a  vindication  of  it,  sup- 
ports the  jurisdiction  to  issue  the  writ.8 

§  11.  Remedy  required  where  there  is  a  right.—  It  has 
been  said  that  it  would  be  a  monstrous  absurdity  in  a  well- 
organized  government  that  there  should  be  no  remedy, 

iRex   v.  Barker,  3  Burr.  1265;  ler,  4  Harris  &  McH.  429;  R.  v. 

In  re  Turner,  5  Ohio,  542 ;  Hall  v.  Windham,  Cowp.  377. 

Somersworth  (Selectmen),  39  N.  H.  *  Ex  parte  Trapnall,   6  Ark.   9 ; 

511 ;  Legg  v.  City  of  Annapolis,  42  State  v.  Williams,  69  Ala.   311 ;  3 

Md.  203.  Stephen's  Nisi  Prius,  2292. 

2  Morley  v.  Power,  73  Tenn.  691 ;  5  Lewis  v.  Whittle,  77  Va.  415. 
Durham  v.  Monumental  S.  M.  Co.,  6pe0ple  v.  State  Treas.,  24  Mich. 
9  Oreg.  41 ;  R  v.  Cambridge  (Univ.),  468. 

1  W.  Bl.  552 ;  State  v.  Stockwell,  7  '  People  v.  State  Treas.,  24  Mich. 

Kan.  98;  King  v.  Dublin  (Dean),  8  468;    People    v.    Allegan    Circuit 

Mod.  27.  (Judges),  29  Mich.  487. 

3  State  v.  Inferior  Court  (Just),  *Tawas,  etc.  R  R  v.  Iosco  Cir. 
Dud.  (Ga.)  37 ;  Runkel  v.  Winemil-  Judge,  44  Mich.  479. 


6  NECESSITY    THE    ORIGIN    OF    THE    WRIT.  [§  12. 

although  a  clear  and  undeniable  right  should  be  shown  to 
exist ; J  also,  where  a  man  has  a,  jus  ad  rem,  it  would  be  ab- 
surd, ridiculous,  and  a  shame  to  the  law,  if  he  could  have  no 
remedy,  and  the  only  remedy  he  can  have  is  by  mandamus.2 
This  language  cannot,  however,  be  accepted  in  its  full 
strength.  "  We  receive  and  admit  it  as  a  common  maxim 
that  the  law  has  a  remedy  for  every  wrong.  But  this  we 
know  means  only  a  legal  wrong,  and  therefore  the  prop- 
osition being  turned  around  comes  to  nothing  more  thau 
that  there  is  no  wrong  where  there  is  no  remedy."  3  Again 
we  must  keep  in  mind  that  the  existence  of  a  right  is  al- 
ways questionable  when  the  wisdom  of  the  law  affords  no 
adequate  remedy  on  its  violation.4  Our  effort  will  be  to 
show  how  far  the  statement  above  may  be  accepted  as  cor- 
rect. 

§  12.  Increasing  the  uses  of  the  writ. —  Though  the 
reasons  given  by  the  courts,  which  authorized  the  issuance 
of  the  writ  of  mandamus,  as  mentioned  in  the  two  prior 
sections,  were  no  doubt  potential  with  the  courts  before  the 
principles  governing  this  writ  had  crystallized  into  a  system, 
yet  at  the  present  time  the  courts  do  not  act  on  them  so  as 
to  enlarge  the  scope  of  the  writ,  but  only  apply  it  in  cases 
which  fall  under  its  rules  by  well-established  precedent. 
Even  in  cases  where  the  state  law  allows  the  writ  to  issue 
in  all  cases  where  it  is  necessary  to  prevent  a  failure,5  or  a 
denial,6  of  justice,  the  writer  does  not  find  that  any  effort 
has  been  made  to  enlarge  the  scope  of  the  writ.  It  is  con- 
sidered to  be  a  harsh  remedy,  and  to  be  substituted  for  the 
ordinary  process  only  in  extraordinary  cases,  and  laws  ex- 
tending its  operations  should  be  strictly  construed.7 

i  Kendall    v.    United    States,    12  4  Com.  v.  Cumberland  C.  P.  Court 

Peters,  524.  (Judges),  1  S.  &  R.  187. 

2  R.  v.  Montacute,  1  W.  BL  64.  5  Blair  v.  Marye,  80  Va.  485. 

3  Judges  of  Oneida  C.  P.  v.  Peo-  estate  v.  Young,  38  La.  An.  923. 
pie,  18  Wend.  79.  7  State  v.  New  Orleans,  etc.  R.  R, 

42  La.  An.  138. 


CHAPTEK  3. 

SCOPE  OF  THE  WRIT  OF  MANDAMUS. 

§  13.  The  duties  enforced  by  mandamus. 

14.  To  compel  production  and  inspection  of  public  documents. 

15.  Mandamus  as  to  property  devoted  to  public  use. 

16.  Mandamus  not  lie  to  enforce  private  contracts. 

17.  Writ  not  lie  to  compel  payment  of  debts. 

18.  Exceptions  as  to  collecting  debts  by  this  writ 

19.  Exceptions  continued. 

20.  Change  of  law  as  affecting  mandamus. 

§  13.  The  duties  enforced  by  mandamus.  —  A  manda- 
mus will  issue  to  enforce  obedience  to  acts  of  parliament 
and  to  the  king's  charters,1  when  it  is  said  to  be  demand- 
able  ex  debito  justitim.2  It  will  also  issue  to  enforce  obe- 
dience to  the  common  law,3  for  the  statute  law  is  only 
intended  to  supply  the  deficiencies  of  the  common  law  and 
to  meet  exigencies  as  they  arise.4  As  otherwise  said,  the 
writ  lies  to  compel  the  performance  of  an  act  which  the 
law  enjoins  as  a  duty 5  resulting  from  an  office,  trust  or  sta- 
tion.6 Whenever  the  law  gives  power  to,  or  imposes  an 
obligation  on,  a  particular  person  to  do  some  particular  act 
or  duty,  and  provides  no  other  specific  legal  remedy  for 

i  R  v.  Everet,  Cas.  temp.  Hard.  4  State  v.  Republican  V.  R  R,  17 

261 ;  King  v.  Wheeler,  Cas.  temp.  Neb.  647. 

Hard.   99;   People  v.  State  Treas.,  5  Pittsburgh,  etc.  R.  R.  v.  Com., 

24  Mich.  468 ;  Boggs  v.  C,  B.  &  Q.  104  Pa.  St  583 ;  State  v.  Fuller,  18 

R.  R,  54  Iowa,  435 ;  Com.  v.  Alle-  S.  C.  246 ;  State  v.  Hagood,  30  S.  C. 

gheny  Co.  (Com'rs),  32  Pa  St.  218.  519 :  Supervisors  v.  United  States, 

-    2  Bacon's  Ab.,  Title   "  Mand. ;"   3  18  Wall.  71. 

Stephen's  Nisi  Prius,  2291,  2292;  R.  6  State  v.   Johnson,    28  La.   An. 

v.  Clear,  4  B.  &  C.  899 ;  R.  v.  Staf-  932 ;  Crandall  v.   Amador  Co.,  20 

ford,  3  T.  R  646.  Cal.  72 ;  State  v.  Republican  R  B. 

S3  Stephen's  Nisi  Prius,  2291, 2292;  Co.,   20  Kans.   404;   Chumasero  v. 

People  v.  State  Treas.,  24  Mich.  468.  Potts,  2  Mont  242. 


8  SCOPE   OF    THE   WEIT.  [§  14r. 

its  performance,  this  writ  will  issue.1  Such  duties  need  not 
be  specifically  stated  in  the  law.  It  is  sufficient  if  they  are 
imposed  by  implication  from  a  fair  and  reasonable  con- 
struction of  the  law.2  Nor  is  it  necessary  that  ihej  shall 
be  imposed  by  law  on  the  individual  in  question,  provided 
he  has  put  himself  in  the  position  from  which  by  law  the 
duties  accrue.  Thus,  common  carriers,  railroads,  telegraph 
and  telephone  companies,  in  their  business  have  assumed 
public  functions  which  under  the  law  may  be  enforced  by 
mandamus.9  A  railroad  which  accepted  the  benefits  of  a 
tax  authorized  by  law  for  its  assistance  was  held  liable  to 
mandamus  to  enforce  its  obedience  to  obligations  imposed 
upon  it  by  that  act.4  This  writ  lies  to  enforce  duties  im- 
posed by  law,  and  neither  a  stipulation  nor  the  agreement 
of  the  parties  can  change  the  uses  or  the  extent  of  the  writ 
of  mandamus!' 

%  14.  To  compel  production  and  inspection  of  public 
documents. —  This  writ  will  lie  to  enforce  the  production 
of  every  document  of  a  public  nature  in  which  any  citizen 
may  prove  himself  to  be  interested;6  but  he  must  show 
that  his  interest  is  direct  and  tangible,  and  that  his  applica- 
tion is  made  in  good  faith  on  some  special  and  public 
ground,7  unless  the  law  allows  him  an  inspection  thereof 
as  a  matter  of  right.8  Such  right,  however,  will  not  be 
enforced  against  one  being  proceeded  against  criminally.9 

i  Mobile  &  O.  R  R  v.  Wisdom,  5  6  Lord  Denman  in  R  v.  Maryle- 

Heisk.  125 ;  Winters  v.  Burford,  6  bone,  5  A.  &  E.  276 ;  R  v.  Tower 

Cold.  328.  Hamlets,  3  Q.  B.  670. 

2  Mobile  &  O.  R  R  v.  Wisdom,  ?  Briggs,  Ex  parte,  1  E.  &  E.  881 ; 
5  Heisk.  125 ;  Durham  v.  Monu-  Harrison  v.  Williams,  4  D.  &  R  820 ; 
mental  S.  M.  Co.,  9  Oreg.  41 ;  Peo-  Sage,  In  re,  70  N.  Y.  220 ;  R  v. 
pie  v.  Green,  64  N.  Y.  499.  It  has  Clear,  4  B.  &  C.  899 ;  People  v. 
been  held,  however,  that  they  must  N.  P.  R  R,  18  Fed.  Rep.  471 ; 
be  specifically  imposed.  Freon  v.  Colnon  v.  Orr,  71  Cal.  43 ;  State  v. 
Carriage  Co.,  42  Ohio  St  30.  Hollitzelle,    85    Mo.   620 ;    State  v. 

3  State  v.  Nebraska  Tel.  Co.,  17  Williams,  96  Mo.  13. 

Neb.  126.  8  Rex  v.  Great  Faringdon,  9  Barn. 

*  Mobile  &  O.  R  R  v.  Wisdom,  5  &  Cres.  541 ;   King  v.  Wilts,   etc. 

Heisk.  125.  Nav.  (Prop'rs),  3  A.  &  E.  477. 

6  Biggs  v.  McBride,  17  Oreg.  640.  9  King  v.  Cadogan,  5  B.  &  Aid.  902. 


§§  15,   16.]  SCOPE    OF    THE    WKIT.  9 

"Where,  however,  the  law  specified  that  the  registration 
lists  of  voters  should  be  at  all  times  open  to  inspection,  the 
court  considered  that  the  law  had  been  passed  to  prevent 
fraud,  and  that  it  should  be  liberally  interpreted.  It  was 
ruled,  that  any  registered  voter  was  not  only  entitled  to 
inspect  the  lists,  but  also  to  take  copies  thereof,  and  in  case 
such  right  was  refused  hira,  he  could  obtain  redress  by  the 
writ  of  mandamus} 

§  15.  Mandamus  as  to  property  devoted  to  public  use. 
When  one  devotes  his  property  to  a  use  in  which  the  public 
has  an  interest,  he  in  effect  grants  to  the  public  an  interest 
in  that  use,  and  must  submit  to  be  controlled  by  the  public 
for  the  common  good  to  the  extent  of  the  interest  he  has 
thus  created.  He  may  withdraw  his  grant  by  discontinu- 
ing the  use,  but  as  long  as  he  maintains  the  use  he  must 
submit  to  the  control.  In  this  category  are  included  public 
warehouses,  elevators,  telegraph  lines,  telephones  and  other 
occupations  which  the  legislatures  have  undertaken  to  con- 
trol.2 

§  16.  Mandamus  not  lie  to  enforce  private  contracts. — 
Since  the  object  of  this  writ  is  to  enforce  duties  created 
by  law,  it  will  not  lie  to  enforce  private  contracts/  unless 
it  is  extended  to  such  cases  by  statutory  enactment.4 
AY  here,  however,  the  contract  involves  a  public  trust  or  offi- 
cial duty,  the  rule  is  otherwise,  since  that  is  one  of  the 
grounds  for  the  issuance  of  the  writ.  No  attempt  has  been 
made  to  define  a  duty  resulting  from  a  trust,  but  an  exam- 
ination of  the  authorities  would  lead  to  the  conclusion  that 
it  comprehends  no  duty  which  is  not  imposed  by  law.  The 
writ  has  been  refused :  to  an  employee  against  a  public  board 

>  Clay  v.  Bolland  (Ya,  1891),  13  ees),  114  Ind.  389 ;  State  v.  Patter- 
South  E.  Eep.  262.  son,  etc.  R  R,  43  N.  J.  L.  505 ;  State 

2  Post,  §  25.  v.  Einstein,  46  N.  J.  L.  479 ;  Ken- 

3  Benson  v.  Paul,  6  EL  &  BL  273 ;  nedy  v.  Board  of  Education,  82  CaL 
State  v.  Republican  R  B.  Co.,  20  483. 

Kans.  404 ;  People  v.  Dulaney,  96        4  State  v.  New  Orleans,  etc  R  R, 
111  503 ;  Tobey  v.  Hakes,  54  Conn.    42  La.  An.  138. 
274 ;  State  v.  Salem  Church  (Trust- 


10  SCOPE    OF   THE    WRIT.  [§  16. 

for  breach  of  contract ; '  to  a  contractor,  who  had  contracted 
with  the  board  of  education  for  the  deposit  of  its  money 
with  him,  to  compel  its  treasurer  to  make  such  deposit ; 2 
against  the  commissioner  of  public  works,  to  compel  the 
execution  of  a  contract  with  the  relator  for  which  he  had 
bid ; 3  to  enforce  the  contract  of  a  county  to  pay  for  vol- 
unteers ; 4  to  make  a  railroad  keep  a  street  in  repair  as  re- 
quired by  its  contract  with  the  city;5  to  the  state  to  com- 
pel a  company  to  keep  a  bridge  in  repair,  which,  in  return 
for  a  grant  of  land  by  the  state,  it  had  contracted  to  do ; 6 
and  to  compel  arbitrators  to  proceed  under  an  arbitration 
agreement,  which  was  a  common-law  arbitration,  and  not 
under  the  statute  providing  for  its  becoming  a  decree  of 
the  court.7  The  writ  was  refused  to  a  board  of  county 
commissioners  to  compel  a  turnpike  company  to  keep  a 
bridge  in  repair  as  it  had  contracted  with  them  to  do.8 
Where  one  had  contracted  with  'a  city,  which  refused  to  pay 
him,  it  was  held  that  a  mandamus  would  not  lie  to  compel 
any  officer  to  facilitate  his  pa}Tment  by  signing  a  warrant, 
and  that  the  officers  acted  for  the  corporation,  and  owed 
him  no  duty.9  It  was  sought  by  mandamus  to  compel  a  city 
to  construct  a  public  street,  not  yet  opened,  in  a  certain  way, 
in  accordance  with  a  contract  made  with  the  relator,  it 
being  also  alleged  that  such  proposed  construction  was  taken 
into  consideration  in  assessing  the  relator's  damages  and  ben- 
efits. The  court  held  that  the  relator's  rights  rested  wholly 
on  a  special  contract,  which  involved  no  questions  of  public 
trust  or  official  duty,  and  the  writ  was  refused.10     By  its 

1  Portman  v.  Fish  Commissioners,  '  People    v.  Nash,  47    Hun,  542. 
50  Mich.  258.  Where,   however,  by    statute,   the 

2  Board  of  Education  v.  Runnels,  arbitration  may  become  a  rule  of 
57  Mich.  46.  court,  a  mandamus  may  issue.     See 

3  People  v.  Thompson,  99  N.  Y.  §  24. 

641.  8  state  v.  Zanesville,  etc.  T.  Co.,  16 

4  State  v.  Howard  Co.,  39  Mo.  375.     Ohio  St  308. 

estate  v.  New  Orleans,  etc.  R  R,  »  People  v.  Wood,  35  Barb.  653. 

37  La.  An.  589.  »«  Parrott  v.  Bridgeport  (City),  44 

6  State  v.  Republican  R  B.  Co.,  20  Conn.  180. 
Kans.  404. 


§  IT.]  SCOPE   OF    THE    WRIT.  11 

charter  a  railroad  was  allowed  to  build  its  line  along  a  cer- 
tain route,  provided  it  first  contracted  with  a  cemetery 
company  to  build  a  wall  where  its  line  ran  along  the  cem- 
etery. The  cemetery  company  asked  for  a  mandamus  to 
compel  the  railroad  to  build  the  wall  which  it  had  con- 
tracted to  do.  The  court  held  that  the  railroad  had  com- 
plied with  its  charter  duty  in  building  its  line,  and  that  the 
contract  could  only  be  enforced  by  the  usual  means.  The 
mandamus  was  refused,  though  the  railroad  had  then  be- 
come bankrupt.1  It  is  immaterial  on  the  question  of  man- 
damus  what  may  be  the  form  of  the  contract,2  or  that  its 
execution,3  or  that  its  annulment,4  is  sought. 

§  17.  Writ  not  lie  to  compel  payment  of  debts. —  Since 
this  writ  is  intended  for  public  rights,  it  does  not  lie  merely 
to  compel  the  payment  of  debts.  It  cannot  be  used  to 
compel  municipal  authorities  to  pay  the  salaries  due  its 
officers,  since  a  suit  in  assumpsit  may  be  brought;5  nor 
to  recover  moneys  expended  or  misapplied  by  public  offi- 
cers, there  being  another  remedy  which  is  exclusive;" 
nor  to  compel  a  city  to  levy  a  tax  to  pay  its  bonds,  which 
are  questioned  in  law  and  in  fact,  till  a  judgment  has  been 
obtained  thereon  in  the  usual  way ; 7  nor  to  compel  a  mut- 
ual benefit  association  to  levy  an  assessment  to  pay  a  death 
loss,  where  it  denies  all  liability,  till  the  question  has  been 
determined  by  a  suit.3  The  form  of  the  contract  of  a  pri- 
vate association  cannot  confer  jurisdiction  on  the  court  for 
a  proceeding  by  mandamus; 9  nor  can  the  stipulation  or 
agreement  of  the  parties  change  the  extent  or  uses  of  the 
writ ; 10  nor  will  the  court  extend  the  remedy  to  cases  to 

i  State  v.  Patterson,  etc  R.  R,  43  6  Elder    v.    Washington   Ter.,   3 

N.  J.  L.  505.  Wash.  Ter.  438. 

2  Burland  v.  Northwestern  M.  B.  7  State  v.  Manitowoc,  52  Wis. 
Assoc,  47  Mich.  424  423. 

3  People  v.  Thompson,  99  N.  Y.  8  Burland  v.  North  West  M.  B. 
641,  Assoc,  47  ilich.  424. 

*  Detroit    F.   P.   Co.  v.  Board  of  9  Burland  v.  North  West  M.  B. 

Auditors,  47  Mich.  135.  Assoc,  47  Mich.  424. 

» State  v.  Hannon,  38  Kans.  593.  "Biggs  v.  McBride,  17  Oreg.  640. 
See,  however,  ch.  12. 


6 


12  SCOPE    OF    THE    WRIT.  [§§  18,  19. 

which  it  does  not  apply,  although  the  parties  waive  all  ob- 
jections thereto.1 
§  18.  Exceptions  as  to  collecting  debts  by  this  writ. — 

There  are,  however,  exceptions  to  the  rule  that  a  mandamus 
does  not  lie  to  compel  the  payment  of  debts.  The  writ  will 
issue  where  a  ministerial  officer  has  money  in  his  hands 
which  it  is  his  duty  to  pay  to  the  party  entitled  to  it  under 
the  law.  The  rule  is,  that  a  ministerial  officer,  who  has  in 
his  hands  a  specific  fund,  may  be  compelled  by  this  writ  to 
make  distribution  of  the  fund.2  It  has  been  granted:  to 
compel  a  ditch  commissioner,  who  had  collected  assess- 
ments, levied  for  the  construction  of  a  ditch,  to  distribute 
to  the  contractor  the  amount  due  him  for  constructing  the 
ditch;3  to  compel  the  adjustment  of  the  account  of  the 
superintendent  of  a  public  asylum,  whose  salary  was  pay- 
able out  of  a  particular  fund,  by  the  proper  officer ; 4  and  to 
compel  a  railroad  to  pay  to  the  county  judge  the  damages 
assessed  against  it  for  taking  land  for  its  right  of  way,  which 
land  it  was  occupying.5 

§  19.  Exceptions  continued. —  "Where,  however,  a  party 
is  entitled  to  the  payment  of  money,  and  there  is  no  other 
way  of  collecting  it,  to  prevent  a  failure  of  justice  the  writ 
of  mandamus  has  been  allowed  to  enforce  a  duty  imposed 
by  law  on  public  officers  or  corporations."  There  being  no 
other  remedy  the  writ  was  allowed :  against  a  company  to 
compel  payment  for  land  taken  for  their  water-works;7  to 
collect  the  sum  awarded  by  a  jury  for  land  taken  by  the 
harbor  commissioners  under  a  statute ; 8  and  to  cause  com- 
pensation to  be  made  out  of  general  or  special  taxes  for 

* 

1Lord  Campbell  in  Reg.  v.  Treas-  5  State  v.  Grand  Island  R.  R.,  27 

ury,  15  Jur.  767.  Neb.  694. 

2  Ingerman  v.  State  [Ind.,  May  1,  6  R.  v.  St.  Katherine  Dock  Co., 
1891],  27  North  E.  Rep.  499 ;  Illi-  4  B.  &  Ad.  360 ;  Worrnwell  v.  Hail- 
nois  State  Hospital  v.  Higgins,  15  stone,  6  Bing.  668.     See  §  130. 

111.    185 ;     State    v.    Wabash,    etc.  "'  King  v.  Nottingham  O.  W.  W., 

Canal  (Trustees),  4  Ind,  495.  6  A.  &  E.  355. 

3  Ingerman  v.  State,  supra.  §Q.  v.  Swansea  Harbor  (Trustees), 

4  Illinois  State  Hospital  v.  Hig-  8  A.  &  E.  439. 
gins,  15  111.  185. 


I  20.]  SCOPE    OF   THE   WKIT.  13 

damages  sustained  in  making  certain  public  improvements.1 
The  law  authorized  the  president  of  a  bank  to  retain  from- 
its  dividends  or  profits  a  sufficient  sum  of  money  to  meet 
the  taxes  levied  on  its  stock  and  to  pay  the  money  to  the 
state.     The  other  property  of  the  bank  was  exempt  from 
taxation.     The  state  had  no  other  remedy,  and  had  no  lien, 
and  no  action  against  any  one.    The  writ  was  issued  to  com- 
pel the  president  of  the  bank  to  pay  over  the  money.2   The 
liability  of  a  railroad  company  for  taxes  assessed  against  it 
was  affirmed  in  the  supreme  court.     The  railroad  had  been 
leased  to  a  foreign  company,  which  had  agreed  to  pay  to 
the  stockholders  interest  on  their  stock.     There  being  no 
other  remedy,  a  mandamus  was  issued  to  compel  the  pay- 
ment of  these  taxes.3    Where  the  funds  of  a  school  board 
were  held  by  a  city  treasurer  and  paid  out  by  him  on  drafts 
issued  by  the  school  board,  a  creditor  of  the  latter  was  al- 
lowed by  a  mandamus  proceeding  to  prove  up  his  claim  and 
to  obtain  an  order  for  the  school  board  to  issue  to  him  a 
draft  on  the  city  treasurer  for  the  amount  found  to  be  due 
to  him.4 

§  20.  Change  of  law  as  aiFecting  mandamus.—  By  the 
provisions  of  the  United  States  constitution  no  state  can 
pass  a  law  impairing  the  obligation  of  a  contract.  This 
obligation  includes  the  means  provided  by  law  to  compel  a 
compliance  with  the  provisions  of  the  contract.  When  a 
public  corporation  possessing  a  power  to  levy  taxes  to  pay 
its  debts  enters  into  a  contract  whereby  it  incurs  a  debt, 
and  a  law  is  subsequently  passed  which  takes  away  or  sub- 
stantially impairs  such  taxing  power,  such  law  is  void  as  to 
such  contract,  and  the  creditor  on  default  of  payment  may 
by  mandamus  compel  the  corporation  to  levy  a  tax  under 
the  old  law  for  the  purpose  of  paying  the  debt  due  him, 
provided  there  is  no  other  adequate  and  specific  remedy.5 

1 Q.  v.  Wallasey  Board  of  Health,  4Raisch  v.  Board  of  Education, 

10  B.  &  S.  428.  81  Cal.  542. 

2  State  v.  Mayhew,  2  GUI,  487.  »  Wolff  v.  New  Orleans,  103  U.  S. 

3  Person  v.  Warren  R.  R,  32  N.  J.  358 ;  Ralls  Co.  v.  United  States,  105 
L,  441.  U.  S.  733 ;  Von  Hoffman  v.  Quincy 


14  SCOPE    OF    THE    WKIT.  [§  20. 

When  such  law,  though  to  some  extent  changing  the  rem- 
edy, does  not  impair  the  obligation  of  the  contract,  it  will 
be  applied  to  such  contract.1  Even  the  right  to  a  writ 
of  mandamus  may  be  taken  away  without  any  violation  of 
the  constitution  of  the  United  States  or  of  the  state,  pro- 
vided an  adequate  and  efficacious  remedy  be  left.'2  When, 
on  the  other  hand,  a  subsequent  law  gives  other  and  addi- 
tional means  for  enforcing  the  obligation  of  a  contract,  as 
by  subjecting  other  property  to  a  liability  therefor,  or  by 
increasing  the  power  of  taxation,  the  party  interested  may 
avail  himself  thereof.3 

(City),  4  Wall.  535 ;  State  v.  Rahway  States  v.  Lincoln  County  (Just),  5 

(Assessors),  43  N.  J.  L.  338 ;  Assessor  Dill.  184. 

of  Taxes  v.  State,  44  N.  J.  L.  395 ;  Rees  J  Antoni  v.  Greenhow,  107  U.  S. 

v.  Watertown  (City),  19  Wall.  107 ;  769. 

Louisiana  v.  Pilsbury,  105  U.  S.  278 ;  2  Poindexter  v.  Greenhow,  81  Va. 

Duperier  v.  Iberia  Parish   (Police  441. 

Jury),  31  La.  An.  709;  Canova  v.  3  Cape  Girardeau  County  Court  v. 

State,  18  Fla.  512 ;  Columbia  County  Hill,  118  U.  S.  68 ;  Clay  County  v. 

(Com'rs)  v.King,  13  Fla.  451;  United  McAleer,    115    U.   S.   616;   United 

States  v.  Galena  (City),  10  Biss.  263. 


CHAPTER  4. 

HOW  FAR  THE  WRIT  IS  CONFINED  TO  PUBLIC  RIGHTS  AND 
AGALNST  PUBLIC  OFFICERS. 

§  21.     Is  the  writ  confined  to  public  rights  in  England? 

22.  American  rule. 

23.  The  writ  will  not  run  against  a  private  person  or  one  not  acting 

officially. 

24.  Subject  continued. 

25.  Mandamus  to  parties  assuming  public  duties. 

26.  When  is  property  devoted  to  public  uses. 

27.  Mandamus  lies  to  those  holding  public  franchises. 
27a.  Mandamus  runs  to  railroad  corporations. 

28.  The  writ  runs  against  any  corporation. 

§  21.  Is  the  writ  confined  to  public  rights  in  England?— 

1,  It  has  often  been  decided  that  the  writ  of  mandamus  is 
never  issued,  except  in  the  cases  of  public  persons  or  officers, 
and  to  compel  the  performance  of  public  duties.1  Other 
courts  have  expressed  the  same  idea  by  different  phraseol- 
ogy. The  writ  lies,  only  for  the  enforcement  of  public  duties 
enjoined  by  law,2  only  where  there  is  a  plain  dereliction  of 
duty  by  public  officers,3  only  when  the  party  required  to 
act  occupies  some  official  or  quasi-officml  position,4  only  to 
enforce  official  duty  imposed  by  statute,5  regularly  only  in 
cases  relating  to  the  public  and  the  government,6  only 
where  a  public  trust  or  official  duty  is  involved,7  or  only 
to  compel  the  performance  of  duties  imposed  by  law.8    It 

'  3  Stephen's  Nisi  Prius,  2291, 2292 ;  3  State  v.  Comm'rs  of  Shelby  Co., 

R  v.  London  Assur.  Co.,  5  B.  &  Aid.  36  Ohio  St  326. 

901 ;  American  R.  F.  Co.  v.  Haven,  *  State  v.  ToUe,  71  Mo.  645. 

101  Mass.  398 ;  R.  v.  Bank  of  En-  » Bank  of  State  v.  Harrison,  66 

gland,  2  B.  &  Aid.  620 ;  R  v.  Clear,  Ga,  696. 

4B.&C.  901 ;  R.  v.  Stafford,  3  T.  R  « Bacon's  Ab.,  title  "  Mand." 

646.  '  Parrott  v.  City  of  Bridgeport,  44 

2  Chumasero  v.  Potts,  2  Mont  242.  Conn.  180. 

8  Bailey  v.  Oviatt,  46  Vt  627. 


\Q  WRIT   CONFINED   TO   PUBLIC    EIGHTS.  [§  21. 

is  issued  to  an  inferior  tribunal,  corporation,  board  or  per- 
son, to  compel  the  performance  of  an  act  which  the  law 
specially  enjoins  as  a  duty  resulting  from  an  office,  trust  or 
station.1     Notwithstanding  these  decisions,  it  is  not  clear 
that  the  writ  is  confined  to  public  officers  or  to  public  af- 
fairs.   Lord  Mansfield  is  credited  with  being  the  judge  who 
developed  this  writ  into  one  of  great  usefulness.2    Prior  to 
his  chief  justiceship  the  writ  had  been  used  principally,  if 
not  entirely,  to  enforce  restitution  to  public  offices,  and  it 
is  always  designated  in  the  older  abridgments  and  reports 
as  "  the  writ  of  restitution." 3    He  acted  on  the  principle, 
that  where  there  is  a  wrong  there  should  be  a  remedy,  and 
decided  that  where  there  is  a  right  to  execute  an  office, 
perform  a  service  or  exercise  a  franchise,  and  a  person  is 
kept  out  of  possession  or  dispossessed  of  such  right,  the 
writ  of  mandamus  should  issue  to  assist  such  person,  as  a 
matter  of  justice,  and  as  a  matter  of  public  policy  to  pre- 
serve peace,  order  and  good  government.4     A  chaplain  was 
kept  out  of  his  chapel  by  one  of  his  parishioners.     There 
were  lands  attached  to  the  chapel,  which  belonged  to  the 
chaplain  by  right  of  his  function.     The  court  held  that  the 
chaplain  was  entitled  to  the  writ  to  restore  him  to  his  chap- 
laincy.    This  was  a  private  right,  and  the  principal  rea- 
sons operating  on  the  court  seemed  to  be,  that  otherwise 
he  was  remediless,  it  being  very  doubtful  whether,  under 
the  circumstances  of  the  case,  he  could  bring  an  action  of 
trespass  or  of  ejectment.5     In  a  subsequent  case  Lord  Mans- 
field restored  a  dissenting  clergyman  to  his  pulpit  who  had 
certain  emoluments  attached  to  his  position  or  function.  The 
court  inclined  to  the  opinion  that,  since  the  act  of  toleration, 
dissenters  and  their  religious  worship  should  have  the  as- 
sistance of  the  law,  probably  because  such  protection  was 

i  State  v.  Gracey,  11  Nev.  223;  2  People  v.  Steele,  2  Barb.  397. 

People  v.  Insp.  State  Prison,  4  Mich.  3  Tapping  on  Mandamus,  3. 

187;   Fremont  v.  Crippen,  10  Cal.  *  Kex  v.  Barker,  3  Burr.  1265. 

211 ;  Smalley  v.  Yates,  36  Kan.  519 ;  5  Rex  v.  Blooer,  2  Burr.  1043. 
In  re  Woffenden,  1  Ariz.  237 ;  Boggs 
v.  Chicago,  etc.  R.  R.,  54  Iowa,  435. 


§  22.]  WKIT   CONFINED   TO    PUBLIC    EIGHTS.  17 

extended  to  the  state-church.  In  this  opinion  it  was  not 
considered  necessary  that  the  function  should  be  a  matter 
of  public  concern  or  attended  with  profit ;  but  if  such  ques- 
tions were  involved  in  the  case,  the  inducement  would  be 
greater  for  the  court  to  act.1  In  another  case  a  few  years 
later  a  dissenting  clergyman  was  restored  to  his  pulpit. 
"Whether  there  were  any  emoluments  in  this  case  does  not 
appear,  the  note  thereof  being  very  brief.2  In  fact,  as  is 
well  known,  the  phraseology  of  the  decisions  rendered  at 
this  period  and  at  an  earlier  date  cannot  be  relied  on,  since 
they  were  often  transcribed  by  the  reporters  from  memory, 
or  from  the  notes  on  the  papers,  and  an  examination  shows 
that  the  various  reporters  often  differ  in  their  reports  of 
the  same  case  as  to  the  statements  of  the  judges.  The  later 
decisions  seem  inclined  to  limit  the  writ  to  public  affairs. 
The  writ  has  often  been  issued  to  ecclesiastical  officers,  such 
as  bishops,  but  they  were  by  law  recognized  as  state  officers, 
and  were  called  on  to  perform  duties  imposed  on  them  by 
law.  On  the  other  hand,  the  writ  has  been  refused  for  an 
office  not  found  in  the  books  and  not  judicially  known.3 

§  22.  American  rule. —  2.  In  the  American  courts  there 
are  but  few  cases  to  be  found  where  the  writ  has  been  ap- 
plied for,  for  a  function  dissociated  from  a  public  right,  a 
public  office  or  a  corporation.  The  courts  often  quote  with 
approval  Lord  Mansfield's  ruling  on  the  subject  in  Rex  v. 
Barker,  but,  since  the  states  have  generally  accepted  the 
common  law  as  it  existed  at  the  time  of  the  first  settle- 
ments in  this  country,  such  rulings,  made  one  hundred  and 
fifty  years  later,  are  of  course  not  binding.  The  common 
law  relative  to  mandamus,  as  adopted  in  this  country,  was 
very  vague  and  ill-defined,  and  in  the  absence  of  statutory 
definitions  the  courts  have  been  compelled  to  establish  the 
principles  governing  the  issuance  of  this  writ,  and  to  a  great 
extent  they  have  followed  the  rulings  of  Lord  Mansfield. 
In  Maryland,  in  1799,  a  minister  applied  for  the  writ  against 

1  Rex  v.  Barker,  supra.  3  Anon.,  2  Chit  253. 

2  Rex  v.  Jotham,  3  T.  R  575. 

2  ..  _.  . 


18  WKIT   CONFINED   TO   PUBLIC   EIGHTS.  [§  22. 

the  elders  of  his  congregation.  The  real  estate  of  the  church 
was  held  in  trust.  By  contract  with  the  elders  he  agreed  to 
preach  to  the  congregation,  and  the  elders  contracted  to 
furnish  him  with  a  house  and  a  certain  stipend  annually. 
The  court  held  that  he  was  dispossessed  of  a  function,  carry- 
ing with  it  temporal  rights,  and  that  religion  was  a  matter 
of  public  concern,  and  the  writ  was  issued.1  In  the  same 
state,  in  1805,  a  priest  sought  the  writ  against  members  of 
a  certain  congregation,  to  which  he  had  been  assigned  by 
the  bishop,  Avho  kept  him  out  of  the  place  and  its  functions. 
It  does  not  appear  whether  there  were  any  emoluments 
attached  to  the  position,  nor  whether  the  church  was  a  cor- 
poration. The  peremptory  writ  was  issued  because  the 
return  was  adjudged  insufficient  in  its  statements.2  In 
Delaware,  in  1855,  a  preacher  applied  for  the  writ  against 
the  parties  who  held  the  church  property  in  trust,  alleging 
that  they  would  not  allow  him  to  occupy  the  pulpit  of  the 
church  and  preach  to  the  congregation,  which  he  was  en- 
titled to  do  under  the  laws  of  that  religious  denomination. 
The  writ  was  refused,  because  it  did  not  appear  that  there 
were  any  emoluments  or  compensation  of  any  kind  attached 
to  the  position  or  function  of  a  preacher  in  charge  of  the 
church  in  question.3  In  Massachusetts,  in  1829,  a  man  applied 
for  a  mandamus  to  compel  the  parish  clerk  to  give  him  a 
certificate  of  his  having  joined  that  parish.  He  wished  to 
file  the  certificate  with  the  clerk  of  the  religious  society  to 
which  he  had  previously  belonged,  as  evidence  of  his  having 
left  that  society.  The  court  refused  the  writ,  remarking 
that  an  action  was  then  pending  in  which  the  same  ques- 
tions might  be  tried,  and  a  determination  on  that  summary 
process  might  affect  the  rights  of  persons  who  had  no  op- 
portunity to  be  heard.4  In  the  same  volume  is  a  case  de- 
cided at  the  next  term,  which  is  no  doubt  the  case  referred 

1  Runkel  v.  Winemiller,  4  Harris  3  Union    Church    v.    Sanders,   1 
&  McH.  429.  Houst.  100. 

2  Brosius  v.  Renter,  1   Harr.  &  *  Oakes  v.  Hill,  8  Pick.  47. 
Johns.  551. 


§  22.]  WEIT   CONFINED   TO   PUBLIC   EIGHTS.  19 

to.  From  that  decision  it  appears  that  parishes  were  then 
connected  with  the  state,  taxes  were  collected  to  pay  the 
minister,  and  parochial  business  could  be  conducted  by- 
town  officers  and  in  the  usual  course  of  municipal  proceed- 
ings.1 Of  course  then  the  parish  clerk  was  a  public  officer. 
In  California,  when  the  board  of  education  has  elected  a 
person  to  be  a  teacher  in  the  public  schools,  he  can  only  be 
removed  for  certain  causes  specified  in  the  law.  The  board 
wrongfully  removed  a  teacher  to  a  school  of  a  different  grade 
from  the  one  in  which  he  was  teaching.  He  was  allowed  a 
mandamus  to  restore  him  to  his  original  position.  This 
was  on  account  of  the  provisions  of  the  California  law, 
which  allows  a  mandamus  to  issue  to  compel  the  admission 
of  a  party  to  the  use  and  enjoyments  of  a  right  to  which 
he  is  entitled  and  from  which  he  is  unlawfully  precluded.2 
The  statute  of  Nevada  corresponds  with  that  of  California. 
There  a  mandamus  may  issue  to  compel  the  admission  of  a 
party  to  the  use  and  enjoyment  of  a  right  from  which  he 
is  unlawfully  precluded  by  an  inferior  tribunal,  corporation, 
board,  or  person.  A  mandamus  was  brought  to  compel 
the  respondent  to  deliver  to  the  relator  all  the  books  and 
papers  belonging  to  the  office  of  the  superintendent  of  a 
foreign  mining  company,  and  to  admit  him  to  the  enjoy- 
ment of  all  the  rights  of  that  position.  The  writ  was  issued, 
though  the  court  stated  that  the  officers  of  a  foreign  corpo- 
ration were  not  recognized,  and  admitted  that  it  had  no 
jurisdiction  over  the  corporation.  The  decision  was  based 
on  the  propositions  that  its  agent  had  a  right  to  represent 
a  foreign  corporation,  and  that  under  the  statute  a  manda- 
mus would  lie  to  restore  a  party  to  the  enjoyment  of  a  right.3 
A  careful  examination  of  the  American  cases  has  failed  to 
show  to  the  writer  any  other  cases,  where  the  writ  has  been 
issued  to  others  than  public  officers  and  corporations,  which 
are  considered  to  fall  within  the  rule,  except  under  the  cir- 

i  Ashby  v.  "Wellington,  8  Pick.  524.        8  State  v.  McCullough,  3  Nev.  202. 
2  Kennedy  v.  Bd.  Education,  82 
Cal.  483. 


20  WBIT   CONFINED   TO   PUBLIC   EIGHTS.  [§  23. 

cumstances  mentioned  in  the  next  five  sections.  It  is  true 
that  many  decisions  quote  with  approval  Lord  Mansfield's 
ruling,  that  those  unlawfully  dispossessed  of  a  function 
should  be  restored  by  mandamus,  and  many  cases  are  re- 
ferred to  as  sustaining  that  ruling;  yet  an  examination  will 
show  that  the  cases  themselves  have  all  related  to  corpora- 
tions. From  the  numerous  decisions  requiring  the  writ  to 
be  confined  to  public  officers  and  public  affairs,  it  is  not 
probable  that  the  writ  would  now  be  issued,  except  in 
Maryland,  Delaware,  Nevada  and  California,  merely  to  re- 
store a  person  to  a  function  or  right,  though  pecuniary 
emoluments  were  attached  thereto.  Lord  Mansfield  said 
that  the  public  interest  would  not  be  scrupulously  weighed, 
and  a  number  of  cases  are  mentioned  in  the  text-books  as 
being  illustrations  of  that  statement.  These  cases,  however, 
seem  to  refer  to  corporate  rights,  and  even  in  such  cases  it 
was  necessary  to  show  some  public  interest,  because  at  one 
time  the  English  courts  refused  to  issue  the  writ  in  the  case 
of  trading  corporations,  unless  there  was  some  public  in- 
terest involved  in  the  case.1  This  position,  however,  they 
have  long  since  abandoned.2  In  the  case  of  private  charities, 
the  writ  has  on  some  occasions  been  denied,  and  on  other 
occasions  granted.3 

§  23.  The  writ  will  not  run  against  a  private  person 
or  one  not  acting  officially. —  3.  The  rule  is,  that  this  writ 
will  not  run  against  a  private  individual,4  nor  will  it  lie 
against  an  officer  for  acts  done  in  an  unofficial  character. 
A  register  of  deeds  received  a  deed  as  an  escrow,  which  one 
of  the  parties  forbade  him  to  deliver  or  record.  A  manda- 
mus requested  by  the  other  party  to  make  him  record  trie 
deed  was  refused.5    Where  by  consent  a  case  was  tried  be- 

i  R.  v.  Bank  of  England,  2  B.  &        3  Ex  parte  Trustees  Rugby  Char- 
Aid.  620.  ity,  9  D.  &  R.  214 ;  R.  v.  Abrahams, 

2  Dacosta  v.  Russia  Co.,  2  Str.  783 ;  4  Q.  B.  157. 
Rex  v.  Turkey  Co.,  2  Burr.   999 ;        4  Hussey  v.  Hamilton,  5  Kans.  462. 
King  v.  St.  Katherines  D.  Co.,  4  B.        5pe0ple  v.  Curtis,  41  Mich.  723. 
&  Ad.  360. 


§  24.]  WEIT   CONFINED   TO    PUBLIC    EIGHTS.  21 

fore  a  lawyer,  a  private  individual,  sitting  as  judge,  a  man- 
damus  to  make  him  sign  a  bill  of  exceptions  was  refused.1 
A  county  treasurer  in  collecting  delinquent  taxes  was  al- 
lowed a  per  centum  as  his  fee,  which  was  not  charged  to 
him.  A  former  treasurer  was  refused  a  mandamus  to  com- 
pel the  county  auditor  to  draw  a  warrant  on  his  successor  in 
office  for  fees  collected  by  the  latter  which  belonged  to  him.2 
The  writ  will  not  go  to  a  bailee  holding  funds  as  a  private 
individual  to  execute  the  terms  of  the  bailment.3  The 
speaker  of  an  illegal  and  unconstitutional  body,  claiming  to 
be  the  house  of  representatives,  is  a  mere  private  citizen, 
against  whom  a  mandamus  cannot  issue.4  When  a  bill  of 
exceptions  is  signed  by  a  judge,  his  power  over  it  is  gone, 
and  any  alterations  made  in  it  afterwards  by  him  are  made 
by  a  private  individual,  and  a  mandamus  will  not  issue  to 
him  to  restore  it  to  its  former  condition.5  An  officer  can- 
not be  compelled  to  pay  a  sum  of  money  unless  the  money 
is  in  his  official  custody,  legally  subject  to  the  payment  of 
the  demand  made,  when  steps  are  initiated  to  enforce  the 
demand  by  a  mandamus*  A  party  elected  to  an  office  is 
entitled  to  the  papers,  books,  records  and  insignia  of  his 
office.  He  may  obtain  them  by  mandamus  from  his  pred- 
ecessor, who  refuses  to  surrender  them,7  who  must  thus 
be  considered  to  be  acting  as  a  de  facto  officer,  since  the 
decisions  hold  that  in  such  a  case  the  writ  will  not  lie 
against  a  private  individual.8 

§  24.  Subject  continued. —  This  writ  issues  if  an  ex- 
officer,  whether  of  a  public  or  private  corporation,  corn- 
pan}^,  church  or  society,  or  executor  or  widow  thereof,  on 
demand  refuses  to  deliver  to  his  successor  the  books,  etc., 

i  State  v.  Larrabee,  3  Wis.  783.         Slack,  7  Cush.  226 ;  Frisbie  v.  Fogg, 

2  Thomas  v.  Hamilton  Co.  (Au-  78  Ind.  269 ;  People  v.  Head,  25  111. 
ditor),  6  Ohio  St.  113.  325 ;  Kimball  v.  Lamprey,  19  N.  K 

3  State  v.  Bridgman,  8  Kans.  458.    215 ;  Warner  v.  Myers,  4  Oreg.  72. 
*  State  v.  Hayne,  8  Rich.  (N.  S.)  367.        8  Q.  v.  Hopkins,  1  Ad.  &  E.  (N.  S.) 

5  State  v.  Powers,  14  Ga.  388.  161.     Contra,  St.  Luke's  Church  v. 

6  People  v.  Reis,  76  Cal.  269.  Slack,  7  Cush.  226. 
7Prop'rs    St.   Luke's    Church  v. 


22  WRIT   CONFINED    TO    PUBLIC    EIGHTS.  [§  24. 

pertaining  to  his  office,  but  not  against  a  private  person 
who  detains  them.  The  writ  does  not  lie  to  one  not  hold- 
ing an  official  or  quasi-official  station.1  The  writ  also  lies 
against  one  holding  the  insignia  of  an  office,  wrongfully 
claiming  to  be  the  incumbent  thereof.2  An  officer  surren- 
dered the  books  of  his  office  (county  judgeship)  to  his  succes- 
sor, but  subsequently  surreptitiously  carried  them  off.  A 
mandamus  against  him  was  refused,  because  it  was  not  al- 
leged that  he  took  the  books  under  any  pretense  of  a  color 
of  right  to  them  or  to  their  possession,  nor  that  he  was  exer- 
cising, or  pretending  to  exercise,  the  duties  of  the  office.3 
It  would  seem  that  the  necessities  of  the  public  service  and 
the  uncertainty  of  procuring  the  public  records  by  other 
suits  should  lead  the  courts  to  allow  the  issuance  of  the 
writ  in  all  such  cases.  The  writ  has  been  issued  to  an 
officer  to  deliver  up  state  property  which  he  held  without 
right  or  authority  of  law.4  A  board  of  freeholders  were 
allowed  to  recover  by  this  writ  a  public  jail  from  one  in 
whose  charge  they  had  placed  it  under  a  contract  with 
him.5  In  the  earlier  reports  it  appears  that  the  writ  was 
allowed  to  obtain  the  books  of  a  borough  from  an  executor 
who  claimed  that  his  decedent  had  expended  money  for 
the  borough  and  held  the  books  as  security  therefor.6 
Where,  however,  a  private  party  assumes  certain  functions 
whence  by  law  certain  duties  arise,  he  will  be  compelled 
by  mandamus  to  fulfill  those  duties.  A  witness  to  a  sub- 
mission to  arbitration  was  obliged  to  make  affidavit  thereof, 
in  order  to  make  it  a  rule  of  court  according  to  statute.7 
Where  the  parties  contesting  an  election  chose  two  persons 
to  take  the  testimony  together,  who,  after  accepting  the 
position,  decided  that  the  notice  of  contest  was  insufficient 
and  declined  to  proceed,  the  court  compelled  them  by  this 
writ  to  proceed.8    Where  two  persons  accepted  the  posi- 

i  State  v.  Trent,  58  Mo.  571.  6  King  v.  Ingram,  1  W.  Bl.  50. 

2  Walter  v.  Belding,  24  Vt  658.  7  Clark    v.    Elwick,    1    Stra.    1; 

3  Hussey  v.  Hamilton,  5  Kans.  462.     Barnes,  58. 

*  State  v.  Bacon,  6  Neb.  286.  8  state  v.  Peniston,  11  Neb.  100. 

*  State  v.  Layton,  28  N.  J.  L.  244 


§  25.]  WRIT   CONFINED   TO   PUBLIC    RIGHTS.  23 

tions  of  arbitrators  under  a  canal  act,  but  could  not  agree 
upon  the  selection  of  an  umpire,  who  was  provided  for  by 
said  act  in  case  of  their  disagreement,  a  mandamus  was 
issued  to  compel  them  to  select  an  umpire.  The  court  said 
they  must  agree.1  The  legislature  incorporated  a  bank 
and  by  the  same  act  appointed  a  committee  to  receive  sub- 
scriptions thereto.  It  was  held  that  the  duties  assumed  by 
the  committee  were  of  a  public  character,  and  the  public 
had  an  interest  in  their  faithful  discharge.  If  it  should  ap- 
pear that,  after  accepting  the  appointment  and  assuming 
to  act,  anv  of  the  members  of  the  committee  should  refuse 
to  act,  and  thereby  the  act  of  incorporation  might  fail,  a 
mandamus  would  lie  to  make  them  perform  those  duties,2 
or  it  would  lie  if  they  should  wrongfully  refuse  to  allow  a 
party  to  subscribe.3 

§  25.  Mandamus  to  parties  assuming  public  duties.— 
The  laws  of  the  state  have  recently  undertaken  to  super- 
vise and  control  certain  private  occupations,  which  from 
their  nature  or  surroundings  have  become  to  some  extent 
monopolies,  or  have  become  important  agencies  to  large 
numbers  of  people  in  the  community  in  the  transaction  of 
their  business.  The  facilities  for  the  rapid  transaction  of 
business  have  of  late  years  greatly  increased,  while  the 
ao-encies  established  for  the  instantaneous  communication  of 
the  transactions  of  all  the  world  have  made  it  essential  for  all 
traders  to  have  equal  facilities  for  receiving  the  news  and  for 
shipping  or  receiving  goods.  If  common  carriers,  either  of 
news  or  of  goods,  could  refuse  to  serve  all  parties  alike, 
they  could  ruin  the  business  of  any  trader,  or  could  estab- 
lish monopolies.  A  suit  for  damages  would  not  re-estab- 
lish a  ruined  trade,  the  customers  whereof  had  been  turned 
to  rival  operators.  So  American  courts  have  taken  such 
occupations  under  their  control,  and,  regarding  them  as 
public  agencies,  have  enforced  the  common  law  or  statutory 

iKing  v.  Goodrich,  3  Smith,  388.        3  Napier  v.  Poe,  12  Ga.  170. 
2  White  Run  Bank,  In  re,  23  Vt 

478. 


2-i  WKIT   CONFINED   TO   PUBLIC    RIGHTS.  [§  25. 

law  against  them,  and  have  not  hesitated  to  grant  the  writ 
of  mandamus  against  any  party  who,  having  assumed  pub- 
lic duties,  endeavored  to  be  partial  in  the  performance  of 
such  duties  and  attempted  to  give  one  party  an  advantage 
over  another.1     The  courts  have  decided,  that  property  be- 
comes clothed  with  a  public  interest  when  used  in  a  man- 
ner to  make  it  of  public  consequence  and  to  affect  the  com- 
munity at  large.  "When,  therefore,  one  devotes  his  property 
to  a  use  in  which  the  public  has  an  interest,  he  in  effect 
grants  to  the  public  an  interest  in  that  use,  and  must  sub- 
mit to  be  controlled  by  the  public  for  the  common  good  to 
the  extent  of  the  interest  he  has  thus  created.  He  may  with- 
draw his  grant  by  discontinuing  the  use ;  but  as  long  as  he 
maintains  the  use  he  must  submit  to  the  control.2    This  is 
a  departure  from  the  old  principle,  and  of  course  was  very 
much  assailed,3  but  is  now  too  firmly  established  to  be  over- 
thrown.    Most  of  the  cases  which  have  arisen  under  this 
construction  of  law  have  been  cases  of  injunction  or  prose- 
cutions for  violations  of  law,  but  there  have  been  a  number 
of  cases  wherein  the  writ  of  mandamus  has  been  applied 
for  and  granted.     The  assistance  of  the  courts  has  been  fre- 
quently extended  in  the  case  of  telephones,  though  they 
are  a  new  invention,  for  the  courts  apply  the  same  rule  to 
all  agencies  which  now  exist  or  which  may  hereafter  arise 
for  carrying  on  commerce,  which  agencies  become  public 
by  the  nature  of  their  functions.4    The  relations  which  the 
telephone  has  assumed  toward  the  public  make  it  a  com- 
mon carrier  of  news,  a  common  carrier  in  the  sense  in  which 
the  telegraph  is  a  common  carrier,  and  impose  on  it  certain 
well-defined  obligations  of  a  public  character.     All  its  in- 
struments and  property,  used  in  its  business,  are  legally  de- 

1  Nash  v.  Page,  80  Ky.  539 ;  Peo-  Illinois,  supra;  People  v.  Budd,  117 
pie  v.  King,  110  N.  Y.  418 ;  People  N.  Y.  1,  and  People  v.  Walsh,  117 
v.  Budd,  117  N.  Y.  1 ;  Chicago,  etc.     N.  Y.  621. 

R  R  v.  Iowa,  94  U.  S.  155 ;  Peik  v.        4  Pensacola  Tel.   Co.  v.  Western 

Chicago,  etc.  R  R,  94  U.  S.  164.  U.  T.  Co.,  96  U.  S.  1 ;  Telegraph  Co. 

2  Mann  v.  Illinois,  94  U.  S.  113.  v.  Texas,  105  U.  S.  460. 

3  Dissenting  opinions  in  Mann  v. 


§  25.]  WRIT   CONFUSED   TO   PUBLIC   EIGHTS.  25 

voted  to  a  public  use.   As  such  common  carrier  it  can  show 
no  preference,  and  must  furnish  the  same  conveniences  to 
all  persons  who  offer  to  pay  its  charges.    In  case  of  failure 
so  to  do,  a  mandamus  will  issue  to  compel  it  to  do  its 
duty,1  even  though  contrary  to  the  provisions  of  a  contract 
made  with  the  owners  of  the  telephone  patent.     A  com- 
mon carrier  cannot  make  a  contract  relieving  himself  from 
the  duty  imposed  by  law  of  serving  all  alike.2    These  de- 
cisions were  in  no  sense  based  on  the   fact  that   the  re- 
spondents were  corporations,  but  on  the  nature  of  the  du- 
ties assumed,  and  in  a  similar  case  the  writ  would  run  to 
an  individual.3     A  board  of  trade   had  so  conducted  its 
business  for  a  series  of  vears  as  to  create  a  standard  market 
for  agricultural  products,  and,  acting  in  concert  and   in 
combination  with  the  telegraph  companies,  had  built  up  a 
great  system  for  the  instantaneous  and  continuous  indica- 
tion of  the  market  and  its  fluctuations,  until  the  public  and 
all  dealers  in  such  products  had  conformed  their  business 
to  the  system  and  could  no  longer  carry  on  the  business  if 
they  were  denied  the  use  of  such  reports.     The  court  held 
that  the  board  of  trade  was  not  compelled  to  continue  the 
use  of  the  system,  but  if  it  did  so,  it  must  extend  to  all  ap- 
plying therefor  the  benefits  thereof  upon  the  same  terms.4 
On  account  of  such  devotion  of  their  property  to  public 
uses,  a  mandamus  was  issued  to  compel  the  owners   of 
steamboats  and  other  water-craft  to  return  to  certain  state 
officers  the  number  of  passengers  and  tons  of  freight  car- 
ried by  them  in  such  craft  through  certain  locks  on  the 
water-lines  of  transportation.5 

i  Hockett  v.  State,  105  Ind.  250 ;  8  Chesapeake,  etc.  Co.  v.  Bait  etc. 

Chesapeake,  etc.    Co.  v.  Bait  etc.  Co..  66  Md.  399 ;    Central  U.  T.  Co. 

Co.,  66  Md.  399 ;  State  v.  Nebraska  v.  State,  118  Ind.  194 ;  Central  U.  T. 

T.  Co.,  17  Neb.  126 ;   Bell  T.  Co.  v.  Co.  v.  State,  123  Ind.  113. 

Com.,  Sup.  Ct  Pa.,  April  19,  1886.  4  Stock    Exchange   v.  Board  of 

2  State  v.  Bell  Telephone  Co.,  36  Trade,  127  111.  153. 

Ohio  St  296 ;  State  v.  Bell  T.  Co.,  5  Canal  Com'rs  (Board)  v.  Willa- 

23  Fed.  R.  539 ;  State  v.  Delaware,  mette,  etc  Co.,  6  Oreg.  219. 
etc.  Co.,  47  Fed.  R.  633. 


26  WEIT    CONFINED   TO   PUBLIC    EIGHTS.         [§§  26,  27. 

§  26.  When   is   property  devoted  to    public    uses. — 

The  theory  adopted  in  Munn  v.  Illinois,  supra,  is  that 
when  persons  assume  in  their  business  certain  relations  to- 
ward the  public,  such  business  may  be  regulated  by  law. 
"Who  is  to  decide  when  such  relations  have  been  assumed? 
The  court  mentioned  a  number  of  instances  of  the  legal 
regulation  of  various  kinds  of  business,  as :  ferries,  wharves, 
mills,  bridges,  roads,  tavern-keepers,  common  carriers,  hack- 
men  and  bakers.  The  inference  from  the  decision  is,  that 
the  regulation  by  the  legislature  establishes  the  fact  that 
such  business  has  become  of  a  public  nature.  Since  this 
writ  is  now  established  to  be  a  proper  remedy  to  enforce 
obedience  to  law  in  the  case  of  such  duties,  we  may  expect 
to  see  it  more  extensively  used  therefor  in  the  future.  We 
see  no  objection  to  such  a  liberal  use  of  the  writ.  A  speedy 
remedy  is  never  objectionable,  provided  no  rights  are 
thereby  sacrificed.  In  England,  at  present,  the  writ  may 
be  prayed  for  at  the  institution  of  any  civil  suit,  except 
ejectment  and  replevin,  and  if  a  proper  case  is  established 
it  is  granted.1  However,  the  legislature  has  the  control  of 
the  matter  in  its  own  hands.  It  can  determine  what  occu- 
pations are  of  a  public  nature  and  in  what  cases  this  writ 
may  issue. 

§  27.  Mandamus  lies  to  parties  holding  public  fran- 
chises.—  When  there  is  a  grant  and  acceptance  of  a  public 
franchise  which  involves  the  performance  of  a  certain  serv- 
ice, the  person  or  corporation  accepting  such  franchise  can 
by  mandamus  be  compelled  to  perform  such  service.2  In 
such  cases  there  can  be  no  refusal  to  perform  the  duties 
thus  devolved  upon  the  grantee  without  a  surrender  of  the 
franchise.8  Among  such  franchises  are  included :  the  right 
to  condemn  private  property  under  the  power  of  eminent 
domain ; 4  the  right  to  appropriate  water  for  sale  or  distribu- 

i  Act  of  17  and  18  Vict,  ch.  125,  3  Olmsted  v.  Proprietors  of  Mor- 

§  68.  ris  Aqueduct,  47  N.  J.  L.  311. 

2  Haugen  v.  Albina  &  Co.  (Oreg.,  *  Price  v.  Riverside,  etc.  Co.,  56 

Dec  14,  1891),  28  Pac.  Rep.  244  Cal  431. 


§  2fc&.]  WEIT   CONFINED   TO   PUBLIC    EIGHTS.  27 

tion,  which,  the  law  declares  to  be  a  public  use,  and  to  col- 
lect rates  or  compensation  for  the  use  thereof;1  the  right 
to  dig  up  the  streets  and  other  public  ways  of  a  city  to 
place  therein  pipes  and  mains  for  the  distribution  of  illumi- 
nating gas  for  public  and  private  use,2  and  the  grant  of  a 
monopoly,3  as  the  exclusive  right  to  manufacture  and  sell 
gas  in  a  city.4  Such  power  — in  its  nature  a  public  power  — 
and  the  public  duty  are  correlative.5  It  is  because  of  such 
obligation  to  render  service  to  the  public  that  the  legisla- 
ture has  power  to  make  the  grant."  Such  writ,  however, 
can  only  issue  to  enforce  a  duty.7  Where  the  privileges 
granted  are  permissive,  and  not  obligatory,  the  grantee 
cannot  be  compelled  to  exercise  them ;  but  if  it  has  exer- 
cised them,  it  will  be  compelled  to  perform  the  duties  ac- 
cruing therefrom.8  It  is  not  necessary  that  there  should  be 
any  express  statutory  words  imposing  this  duty,  but  it  ex- 
ists whenever  the  public  use  appears.9 

§  27a.  Mandamus  rims  to  railroad  corporations.— This 
writ,  of  course,  runs  against  railroad  corporations,  because 
they  are  corporations  and  because  they  have  a  quad-public 
character,  having  been  endowed  with  the  right  of  eminent 
domain  in  condemning  land  for  their  uses.  The  English 
courts  have  refused  to  issue  this  writ  against  them  to  com- 
pel them  to  extend  equal  facilities  to  all  who  pay  their 
charges,  asserting  that  they  were  allowed,  but  not  required, 
to  carry  freight  and  charge  therefor,  and  also  considering 
that  there  was  adequate  compensation  by  an  action  for  dam- 

i  McCrary  v.  Beaudry,  67  Cal.  120.  6  Gordon  v.  Winchester,  12  Bush, 

2  New  Orleans  G.  Co.  v.  Louisiana  110 ;  Louisville  G.  Co.  v.  Citizens' 
L.  Co.,  115  U.  S.  650.  G.  Co.,  115  U.  S.  683;    Lowell  v. 

3  Williams  v.  Mutual  Gas  Co.,  52  Boston,  111  Mass.  454. 

Mich.  499.  7  People  v.  New  York,  etc.  R.  R, 

4  Shepard  v.  Milwaukee  G.  L  Co.,     104  N.  Y.  58. 

6  Wis.  539 ;  Gas  Light  Co.  v.  Col-  »  Farmers',  etc.  Co.  v.   Henniug 

liday,  25  Md.  1.  (U.  S.  C.  C.  Kans.  1878),  17  Am.  Law 

6  Price  v.  Riverside,  etc.  Co.,  56  Reg.  (N.  S.)  266. 

Cal.   431 ;   Lumbard  v.  Stearns,  4  9  Price  v.  Riverside,  etc.  Co.,  56 

Cush.  60.  Cal.  431. 


2S  WRIT    CONFINED    TO    PUBLIC    EIGHTS.  [§  28. 

ages.1  In  America  such  action  is  not  considered  an  ade- 
quate remedy.  Mandamus  lies  to  make  a  railroad  treat  all 
shippers  alike;2  and  where  it  is  in  the  habit  of  delivering 
grain  at  some  elevators,  to  make  it  deliver  it  to  all  eleva- 
tors ; 3  and  to  make  it  comply  with  the  provisions  of  its 
charter,  as  to  finish  its  track  to  the  terminus  specified  in 
its  charter  and  run  cars  thereon,4  though  it  has  contracted 
with  another  common  carrier  not  to  do  so.5  One  court  held 
that  a  railroad  could  not,  at  the  relation  of  a  private  party, 
be  compelled  by  mandamus  to  transport  his  goods,  an  ac- 
tion for  damages  being  a  sufficient  remedy ; 6  but  that  the 
state  itself  could  obtain  such  a  writ  to  compel  it  to  do  its 
duty  as  a  common  carrier  of  freight  and  passengers.7 

§  28.  The  writ  runs  against  any  corporation. —  This  writ 
issues  in  a  proper  case  against  any  corporation.  This  may 
be  considered  as  an  exception  to  the  rule  that  it  only  issues 
against  public  officers.  However,  such  jurisdiction  is  well 
established,  and  the  reason  assigned  therefor  is  that  the 
courts  have  such  supervisory  jurisdiction  over  corporations 
to  see  that  they  act  agreeably  to  the  end  of  their  institu- 
tion, and  that  the  king's  charters  are  properly  observed.8 


i  Ex  parte  Robins,  3  Jur.  103.  5  state  v.  Hartford,  etc.  R.  R,  29 

2  State  v.  Delaware,  etc,  R  R,  48  Conn.  538. 

N.  J.  L.  55.  6  people  v.  New  York,  etc.  R  R, 

3  Chicago,  etc.  R  R  v.  People,  56  22  Hun,  533. 

111.  365.  7  People  v.  New  York,  etc.  R  R, 

<  People  v.  Rome,  etc.  R  R,  103  28  Hun,  543. 

N.  Y.   95 ;    People  v.  Albany,  etc,  8  R  v.  Askew,  4  Burr.  2186 ;  post, 

R  R,  24  N.  Y.  261.  §  157. 


CHAPTER  5. 

GENERAL  PRINCIPLES  GOVERNING  THE  ISSUE  OF  THE  WRIT 

OF  MANDAMUS. 

§  29.  General  nature  of  acts  to  which  the  writ  applies. 
30.  Ministerial  acts. 
81.  Distinction  between  ministerial  and  judicial  acts  illustrated. 

32.  Mandamus  to  take  action  in  judicial  or  discretionary  matters. 

33.  Mandamus  not  lie  when  performance  is  discretionary. 

34.  Permissive  statutes  may  be  mandatory. 

35.  Though  the  act  calls  for  discretion,  no  excuse  for  non-action. 

36.  Mandamus  to  take  jurisdiction  when  wrongfully  declined. 

37.  Mandamus  not  lie  when  officer  has  acted  in  a  discretionary  mat- 

ter. 

38.  Exceptions  as  to  interfering  with  acts  involving  discretion. 

39.  Illustrations  of  such  interference. 

40.  Mandamus  when  fraud  or  prejudice  has  influenced  action. 

41.  The  abuse  of  discretion  must  be  flagrant 

42.  The  writ  of  mandamus  will  not  lie  to  undo  what  has  been  done. 

43.  Mandamus  and  injunction  contrasted. 

44.  Are  preliminary  questions  judicial  or  ministerial? 

45.  English  rule  as  to  preliminary  questions. 

46.  American  rule  as  to  preliminary  questions. 

47.  Subject  continued. 

48.  Summary  of  decisions  on  the  subject 

49.  Mandamus  protects  only  substantial  interests. 

50.  The  writ  creates  no  new  duty. 

51.  Writ  denied  when  there  are  other  remedies. 

52.  Other  remedy  must  be  speedy. 

53.  Other  remedy  must  be  adequate. 

54.  Other  remedy  must  be  specific. 

55.  Other  remedy  must  be  a  legal  remedy. 

56.  Relator  must  show  a  clear  legal  right 

57.  Obligation  on  respondent  to  do  the  act  must  be  absolute, 

58.  Mandamus  not  lie,  if  act  only  to  be  done  on  approval  of  another. 

59.  There  must  be  an  officer  to  do  the  act  desired. 

60.  Corollaries  from  preceding  sections. 

61.  Mandamus  is  entirely  a  civil  remedy. 


30  GENERAL   PRINCIPLES.  [§§  29,  30. 

§  29.  General  nature  of  acts  to  which  the  writ  applies. 

This  writ  lies  to  compel  the  performance  of  any  act  purely 
ministerial,  and  to  compel  an  officer,  whose  duty  it  is  to  act 
in  a  matter  which  requires  judgment  and  discretion,  to  hear 
and  pass  on  the  matter.  In  the  former  case  the  court  will 
specifically  order  the  act  to  be  done,1  but  in  the  latter  case 
the  decision  is  left  to  the  officer  or  tribunal  charged  with 
the  consideration  of  the  subject.2  It  is  the  character  of  the 
duty,  but  not  that  of  the  body  or  officers,  which  determines 
how  far  it  may  be  enforced  by  mandamus} 

%  30.  Ministerial  acts. —  A  ministerial  act  is  one  which 
a  public  officer  or  agent  is  required  to  perform  upon  a  given 
state  of  facts  in  a  prescribed  manner  in  obedience  to  the 
mandate  of  legal  authority,  and  without  regard  to  his  own 
judgment  or  opinion  concerning  the  propriety  or  impro- 
priety of  the  act  to  be  performed.4  But  when  the  act  to  be 
done  involves  the  exercise  of  discretion  or  judgment  in 
determining  whether  the  duty  exists,  it  is  not  to  be  deemed 
purely  ministerial.5  As  to  all  acts  calling  for  the  exercise  of 
judgment  or  discretion  on  the  part  of  the  officer  or  body 
at  whose  hands  performance  is  sought,  a  mandamus  will 
not  lie.6    If,  however,  the  facts  are  admitted  which  alone 

i  People    v.  McCormick,   106  111.  Ex  parte  Hays,  26  Ark.  510 ;  R.  v. 

184;    Attorney-General  v.   Boston,  Middlesex  (Justice),  4  Barn.  &  Aid. 

123  Mass.  460 ;  Carpenter  v.  Bristol  300. 

(Co.  Cora'rs),  21  Pick.  258;  State  v.  SMarbury  v.  Madison,  1  Cranch, 

Williams,   69   Ala.  311;  Carrick  v.  137;  People  v.  Dental  Examiners, 

Lamar,  116  U.  S.  423;  Mooney  v.  110  111.  180;  Ex  parte  Harris,   52 

Edwards,  51  N.  J.  L.  479.  Ala.  87;  People  v.  Troy  (Council), 

2  People  v.  Troy  (Common  Coun-  78  N.  Y.  33. 

cil),  78  N.  Y.  33 ;  Williams  v.  County  4  Insurance  Company  v.  Wilder, 

Commissioners,  35  Me.  345  ;  Secre-  40  Kans.  561 ;  Gray  v.  State,  72  Ind. 

tary  v.  McGarrahan,  9  Wall.  298 ;  567 ;  United  States  v.  Whitney,  16 

Ex  parte  Many,  14  How.  24;  State  Dist.  Col.  370. 

Board  of  Education  v.  West  Point,  5  Bledsoe  v.  International  R  R, 

50  Miss.  638 ;  People  v.  Dental  Ex-  40  Tex.  537 ;  Arberry  v.  Beavers,  6 

aminers,  110  111.  180 ;  Com.  v.  Boone  Tex.  457 ;    Scripture  v.   Burns,   59 

County  Court,  82  Ky.  632 ;  State  v.  Iowa,  70 ;  Newport  (City)  v.  Berry, 

Board  of  Liquidators,  23  La.  An.  80  Ky.  354 ;  Hoole  v.  Kinkead,  16 

388 ;  R  v.  North  Riding,  2  B.  &  C.  Nev.  217 ;  Eve  v.  Simon,  78  Ga.  120. 

286 ;  Ewing  v.  Cohen,  63  Tex.  482 ;  6  Devin  v.  Belt,  70  Md.  352 ;  State 


§31.]  GENERAL    PRINCIPLES.  31 

allow  discretion,  a  mandamus  may  issue  to  compel  the  per- 
formance of  the  act.1 

§  31.  Distinction  between  ministerial  and  judicial  acts 
illustrated. —  The  courts,  and  not  the  officers  charged  with 
the  duties,  are  the  final  arbiters  as  to  whether  such  duties 
are  ministerial  or  judicial,2  and  in  their  determinations 
great  differences  will  be  found.3  All  acts  or  duties,  depend- 
ing upon  a  decision  of  a  question  of  law  or  the  ascertain- 
ment of  matters  of  fact  by  the  officer  or  tribunal  charged 
with  the  duty,  are  considered  to  be  judicial.4  The  federal 
courts  place  very  strict  limitations  upon  the  use  of  the  writ 
of  mandamus.  They  hold  that  it  was  never  intended  that 
the  writ  should  be  used  to  interfere  with  the  executive 
officers  of  the  government  in  the  exercise  of  their  ordinary 
official  duties,  nor  will  it  lie  when  the  evidence  in  the  case 
exists  in  parol,  involving  the  necessity  of  taking  proofs,  nor 
when  controverted  matters  must  be  judicially  heard  and 
decided  by  the  officer  to  whom  the  writ  is  required  to  be 
addressed.5  But  when  by  special  statute  or  otherwise  a 
mere  ministerial  duty  is  imposed  upon  them,  and  they 
refuse  to  perform  it,  mandamus  lies  to  compel  them  to  per- 
form such  duty.6  When  a  subordinate  officer  is  overruled 
by  his  superior,  having  appellate  jurisdiction  over  him,  his 
duty  to  obey  the  decision  of  such  superior  is  a  ministerial 
duty,  which  he  can  be  compelled  by  mandamus  to  perform.7 

v.  Martin  County  (Com'rs),  125  Ind.  (Judge),  29  Mich.  487 ;  State  v.  Ver- 

247 ;  Sansom  v.  Mercer,  68  Tex.  488 ;  ner,  30  S.  C.  277.  Contra  as  to  ques- 

In  re  Woffenden,  1  Ariz.  237.  tions  of  law,  Thomas  v.  Armstrong, 

i  Henry  v.  Taylor,  57  Iowa.  72 ;  7  Cal.  286. 

Briggs  v.  Hopkins,  16  R.  I.  83.  5  Secretary    v.     McGarrahan,     9 

2  State  v.  Watertown  (Council),  9  "Wall.  298 ;  United  States  v.  Com- 
Wis.  254  missioner,    5    Wall.    563 ;     United 

3  State  v.  County  Court,  33  W.  Va.  States  v.  Raum,  135  U.  S.  200 ;  Car- 
589.  rick  v.  Lamar,  116  U.  S.  423;  Ree- 

*  Mooney  v.  Edwards,  51  N.  J.  L.  side  v.  Walker,  11  How.  272 ;  United 

479 ;  People  v.  Troy  (Com.  Council),  States  v.  Windom,  137  U  S.  636. 

78  N.  Y.  33 ;  Hoole  v.  Kinkaid,  16  6  United  States  v.  Raum,  135  U.  S. 

Nev.   217;    Sansom  v.   Mercer,   68  200 ;  Carrick  v.  Lamar.  116  U.  S.  423. 

Tex.  488 ;  State  v.  Wright,  4    Nev.  "'  United  States  v.  Raum,  135  U.  S. 

119;     People    v.    Allegan    Circuit  200. 


32  GENERAL   PRINCIPLES.  [§  31. 

It  is  no  objection  to  the  issuance  'of  this  writ  that  it  requires 
a  multiplicity  of  acts,  requiring  an  exercise  of  judgment 
and  discretion  as  to  details.  It  has  been  issued  to  compel 
a  railroad  to  grade  its  tracks  so  as  to  make  the  crossings 
practically  convenient  and  useful,  to  construct  its  road  over 
a  stream  so  as  not  to  interfere  with  navigation,  to  replace 
a  part  of  its  track  which  it  has  wrongfully  taken  up,  to 
run  daily  trains,  etc.1  Where,  however,  the  duty  required 
consists  of  a  number  of  actions,  and  at  the  same  time  it  is 
vague  in  many  particulars,  the  courts  will  decline  to  enforce 
it  by  this  writ.  An  act  of  the  legislature  required  the  super- 
visors of  a  county  to  let  the  construction  of  the  public 
buildings  to  the  lowest  bidder,  to  erect  those  buildings  in 
a  certain  place,  to  have  them  completed  in  a  certain  time, 
and  to  levy  a  tax  to  defray  the  expenses  thereby  incurred. 
The  court  refused  to  enforce  this  duty  by  the  writ  of  man- 
damus because  the  law  was  very  vague  in  many  of  its  pro- 
visions.2 Its  object,  though,  is  to  compel  the  doing  of 
particular  specified  acts,  and  not  to  constrain  a  person  to 
regulate  his  whole  course  of  conduct  according  to  some 
general  principle.3  In  order,  however,  that  a  decision  may 
be  considered  to  be  judicial,  it  must  be  upon  law  or  facts 
legitimately  involved  in  the  question  before  the  tribunal; 
otherwise  the  decision  is  reviewable  by  mandamus*  As 
long  as  there  is  any  reasonable  doubt  as  to  whether  or  not 
a  matter  depends  upon  the  result  of  an  inquiry  or  investi- 
gation into  the  facts,  or  which  involves  the  hearing  and 
consideration  of  evidence,  which  is  to  control  the  action  of 
the  officer  or  tribunal,  courts  will  not  undertake  to  review 
the  conclusion  or  judgment  by  a  mandamus  proceeding, 
after  the  body  or  officer  has  acted.5  The  writ  has  been  re- 
fused, because  the  acts  involved  discretion  and  judgment, 
to  compel  the  clerk  of  the  circuit  court  to  approve  a  bond 

'Ohio  &  M.  R.  R  v.  People,  120  i  People  v.  Judge  Allegan  Circuit, 

111.  200.  29  Mich.  487. 

2  State    v.    Washington    County  5  State  v.  Greene  County  (Board 
(Sup'rs),  2  Chand.  247.  Coin'rs),  119  Ind.  444, 

3  State  v.  Einstein,  46  N.  J.  L.  479. 


§  32. j  GENERAL    PRINCIPLES.  33 

for  costs  in  a  contest  over  the  election  of  a  judge  of  pro- 
bate,1 to  compel  the  board  of  commissioners  to  approve 
the  bond  of  a  justice  of  the  peace,2  to  make  a  probate  court 
pass  on  the  last  will  of  the  deceased  before  passing  on  a 
prior  one,3  to  make  a  board  of  health  issue  to  a  physician  a 
license  to  practice,4  to  approve  a  bond  for  a  license  to  sell 
whisky,3  to  compel  a  board  of  education  to  approve  of  a 
school  teacher,6  to  make  the  secretary  of  the  interior  cause 
certain  public  lands  to  be  surveyed  and  sold,7  and  to  correct 
an  error  in  a  tax  duplicate.8  An  auditor  was  required  to 
place  certain  assessments  on  the  tax  duplicate  for  collection, 
such  duty  being  considered  merely  ministerial.9  Before 
issuing  this  writ  to  a  ministerial  officer  the  court  must 
ascertain  what  is  his  specific  duty  in  the  premises.10 

§  32.  Mandamus  to  take  action  in  judicial  or  discretion- 
ary matters. —  The  writ  lies  to  make  a  body  or  officer 
charged  with  a  duty,  involving  judgment  or  discretion, 
take  action  in  the  matter.11  When  a  subordinate  body  is 
vested  with  power  to  determine  a  question  of  fact,  the  duty 
is  judicial,  and  though  it  can  be  compelled  by  mandamus  to 
determine  the  fact  it  cannot  be  directed  to  decide  in  a  par- 
ticular way,  however  clearly  it  may  be  made  to  appear  what 
that  decision  ought  to  be.12  A  court  will  be  ordered  to  pro- 
ceed to  judgment,  but  it  will  not  be  instructed  to  render  a 
particular  judgment.13  It  is  said  there  is  not  a  case  where 
the  king's  bench  has  ordered  an  inferior  court  to  render  a 
particular  judgment.14  When  a  decision  has  been  reached 
in  a  matter  involving  discretion,  a  writ  of  mandamus  will 

i  McDuffie  v.  Cook,  65  Ala.  430.  9  State  v.  Stout,  61  Ind.  143. 

2 County  Commissioners  (Board)  io State  v.  Garesche.  65  Mo.  480; 

t.  Crotty,  9  Colo.  318.  State  v.  Williams,  95  Mo.  159. 

3  People    v.    Knickerbocker,    114  n  Com.  v.  Cochran,  6  Binn.  456. 

111.  539.  12  People  v.  Troy  (Com.  Coun.),  78 

«  State  v.  Gregory,  83  Mo.  123.  N.  Y.  33. 

5 Parker  v.  Portland,  54  Mich.  308.  "Police  Board  v.  Grant,  9  Sm.  & 

6Wintz  v.  Board  of  Education,  M.  77. 

28  W.  Va.  227.  14  R.  v.  Middlesex  (Just),  4  B.  & 

~>  Carrick  v.  Lamar,  116  U.  S.  423.  Aid.  300. 

8  Lynch,  Ex  parte,  16  S.  C.  32. 
3 


04  GENERAL    PRINCIPLES.  [§  32. 

not  lie  to  review  or  correct  it,  no  matter  how  erroneous  it 
may  be.1  The  writ  lies  to  make  a  judge  sign  a  bill  of  ex- 
ceptions, but  it  will  not  lie  to  compel  him  to  sign  a  particu- 
lar bill.2  A  superintendent  of  highways,  who  had  discretion 
in  the  matter,  was  not  compelled  to  certify  for  the  benefit 
of  a  contractor  that  certain  roads  were  kept  in  good  repair, 
though  the  court  found  that  they  were  so  kept.3  When 
the  supervisors  refuse  to  allow  a  claim  as  a  county  charge, 
the  writ  will  go  to  compel  them  to  pass  on  it,  if  it  is  prop- 
erly such  a  charge,  but  the  amount  of  the  allowance  will  be 
left  to  their  judgment.4  When  an  auditor  is  vested  with 
discretion  in  passing  on  a  claim  against  a  county,  a  man- 
damus will  lie  to  compel  him  to  consider  it,  if  he  refuse  to 
do  so.5  A  mandamus  will  lie  to  the  county  commissioners 
to  act  in  approval  or  disapproval  of  the  bond  of  the  clerk  of 
the  superior  court,  but  not  to  control  their  judgment  or 
discretion  in  the  matter.6  If  the  visitor  of  a  corporation 
improperly  refuse  to  hear  a  case,  he  will  be  compelled  to 
pass  on  it.  If  he  has  acted  thereon,  his  judgment  is  final.7 
The  writ  was  applied  for  to  compel  the  justices  to  hear  an 
information.  They  returned  that  they  had  heard  it  and 
had  dismissed  it,  because  it  was  not  filed  in  time  under  the 
statute.  The  writ  was  refused,  because  the  justices  had 
heard  and  determined  the  question.8  The  writ  was  applied 
for  to  compel  the  mayor  and  comptroller  to  determine  which 
four  papers  had  the  largest  daily  circulation  in  order  to 
award  to  them  under  the  law  the  corporation  advertising. 
The  court  stated  that  it  could  compel  the  comptroller  to 
meet  with  the  mayor,  but  it  could  not  compel  the  two  to 
agree  in  their  decision,  because  a  question  of  fact,  requiring 

i  Regina  v.  Bristol  (Just.),  28  Eng.  ■'•  Burnet  v.  Portage  Co.  (Aud.),  12 

L.  &  E.  160.  Ohio,  54. 

2  Thornton  v.  Hoge,  84  Cal.  231.  « Buckman  v.  Beaufort  (Com'rs), 

3  Seymour  v.  Ely,  37  Conn.  103.  80  N.  C.  121. 

4  Hull  v.  Oneida  Co.  (Sup' is),   19  <  6  Bacon's  Ab.,  tit.  "  Mand."  C.  2 ; 
John.    259;    Tilden  v.   Sacramento  post,  §  175. 

Co.  (Sup'rs),  41  Cal.   68 ;  People  v.        » Q.  v.  Mainwaring,  Ellis,  B.  &  E. 
Macomb  Co.  (Sup'rs),  3  Mich.  475.        474. 


§§  33,  34.]  GENERAL   PRINCIPLES.  35 

the  consideration  of  evidence,  was  involved.1  Though  the 
courts  will  not  interfere  with  the  executive  officers  of  the 
government  in  their  ordinary  official  duties,  yet  when  they 
refuse  to  act  at  all  in  a  case  in  which  the  law  requires  them 
to  do  so,  they  will  be  compelled  to  take  action  by  this  writ.2 
This  writ  lies  to  compel  public  officers  to  act  with  reasonable 
promptness  in  performing  any  duty  involving  discretion.3 

§  33.  Mandamus  not  lie  when  —  Performance  is  dis- 
cretionary.—  When  the  duty  is  not  mandatory,  but  the 
officer  or  body  is  allowed  a  discretion  as  to  when  the  minis- 
terial act  shall  be  performed,  or  whether  it  shall  be  per- 
formed at  all,  such  performance  will  not  be  enforced  by  the 
writ  of  mandam  us.*  Where  a  county  board  had  a  discretion 
as  to  when  and  how  it  should  construct  bridges,  a  petition 
for  a  mandamus  to  compel  the  construction  of  a  bridge  was 
rejected.5  "Where  a  court  had  a  discretion  as  to  whether  it 
would  hear  charges  preferred  against  a  justice  of  the  peace, 
a  mandamus  to  compel  such  hearing  was  denied.6  The 
writ  was  refused  to  compel  the  attorney-general  to  file 
a  quo  warranto,  because  the  law  allowed  him  a  discre- 
tion in  doing  so.7  The  board  of  liquidators  were  not  re- 
quired by  mandamus  to  sell  the  state  bonds  in  order  to 
fund  the  floating  state  debt,  because  the  law  allowed  them 
a  discretion  as  to  whether  or  not  and  when  they  should 
proceed  to  sell  them.8 

§  M.  Permissive  statutes  may  be  mandatory.—  It  does 
not  follow,  however,  because  the   words  of  a  statute  are 

1  People  v.  Brennan,  39  Barb.  651.  v.  Burnsicle,  33  S.  C.  270 ;  People  v. 

2 United  States  v.  Raum,  135 U.S.  Farquer,   Breese.  68;     Davisson  v. 

200.  Board  of   Supervisors,  TO  Cal.  610; 

3  State  v.  Belmont  Co.  (Com'rs),  Rollersville,  etc.  Co.  v.  Sandusky 
31  Ohio  St.  451.  Co.,  1  Ohio  St.  149. 

4  State  v.  Washington  Co.  (Board  ft  St.  Clair  County  v.  People,  85 
Sup'rs),  2  Chaud.  247  ;  State  v.  Canal,  111  396. 

etc.  R.  R,  23  La.  An.  333 ;  Board  of  6  Ex  parte  Johnson,  3  Cow.  371. 

Supervisors  v.  People,  110  111.  511;  "People  v.  Attorney-General,  41 

R.  v.  Fowey  (Mayor),  2  B.  &  C.  591 ;  Mich.  728. 

Ottawa  v.  People,  48  111.  233 ;  State  8  State  v.  Warmoth,  23  La.  An.  76. 
v.  Warmouth,  23  La.  An.  76 ;  State 


38  GENERAL   PRINCIPLES.  [§  35. 

permissive,  that  the  body  or  officer  has  a  discretion  in 
performing  the  act.  When  the  words  of  a  statute  are  per- 
missive, but  public  rights  or  interests  are  concerned,  or 
the  public  or  third  parties  have  a  claim  de  jure  that  the 
power  shall  be  exercised,  such  words  will  be  construed  to 
be  obligatory.1 

§  35.  Though  the  act  calls  for  discretion,  no  excuse 
for  non-action. —  The  fact  that  the  act  to  be  done  calls  for 
the  exercise  of  discretion  will  not  be  allowed  to  be  an  ex- 
cuse for  non-action.  The  supervisors  of  a  county  were  by 
an  act  of  the  legislature  required  to  issue  bonds  for  the  pur- 
pose of  improving  the  roads  of  the  county,  which  bonds, 
after  advertisement  thereof,  were  to  be  sold  to  the  highest 
bidder,  but  the  supervisors  had  authority  to  reject  all  bids. 
The  court  declared  the  law  to  be  mandatory,  and  that  the 
power  to  reject  bids  must  be  used  to  effectuate,  and  not  to 
defeat,  legislation.  The  supervisors  were  ordered  to  sell 
the  bonds  to  the  highest  bidders.2  Two  arbitrators  ap- 
pointed under  a  canal  act  could  not  agree  on  an  umpire 
who  was  provided  for  under  the  act.  The  court  said  they 
must  agree,  and  issued  a  mandamus  to  that  effect.3  A 
peremptory  writ  was  issued  to  the  common  councils  of  a 
city  to  levy  a  tax  to  pay  certain  city  bonds.  Upon  a  pro- 
ceeding for  contempt  of  court,  it  was  considered  that  the 
members  had  not  discharged  their  duty  by  voting  for  a 
proper  ordinance.  Each  member  was  bound  to  see  that  a 
proper  ordinance  was  passed  and  recorded,  so  as  to  be  a 
law.  The  differences  between  the  councils  could  be  har- 
monized as  to  amount,  etc.    Each  member  was  bound  to  be 

i  Supervisors  v.  United  States,  4  20  Md.  449 ;  People  v.  Buffalo  Co. 

Wall.    435;     Brokaw    v.   Commis-  (Com'rs),   4  Neb.    150;    Tarver    v. 

sioners  of  Highways,  130  111.  482;  Tallapoosa  (Com'rs  Court),  17  Ala. 

Gray  v.  State,  72  Ind.  567 ;  Worces-  527 ;  People  v.  Otsego  Co.  (Sup'rs), 

ter  v.  Schlesinger,    16  Gray,   166 ;  51  N.  Y.  401 ;  State  v.  Camden.  39 

Napa  V.  R.  R.  v.  Napa  Co.  (Sup'rs),  N.  J.  L.  620 ;  People  v.  Blooming- 

30  CaL   435 ;  Malcom  v.  Rogers,  5  ton  (Mayor),  63  111.  207. 

Cow.  188 ;  Whettington,  Ex  parte,  2  People  v.  San  Luis  Obispo  Co. 

34  Ark.  394 ;  Public  School  Com-  (Sup'rs),  50  Cal.  561. 

missioners  v.  Allegany  Co.  (Com'rs),  3  King  v.  Goodrich,  3  Smith,  388. 


§§  3G-38.]  GENEKAL   PEINCIPLES.  37 

diligent  in  attending  to  the  passage  of  such  an  ordinance. 
He  could  not  say  that  his  duty  was  done  because  the  ma- 
jority of  his  council  or  the  other  branch  of  the  councils  had 
fixed  a  different  rate  of  taxation  from  what  he  thought 
necessary.1 

§  36.  Mandamus  to  take  jurisdiction  when  wrongfully 
declined. —  When  the  tribunal  or  officer  whose  duty  it  is 
to  take  jurisdiction  of  a  matter,  believing  erroneously  that 
it  has  no  jurisdiction,  declines  to  consider  the  matter,  a 
mandamus  will  issue  to  compel  such  a  hearing,2  viz.,  when 
a  court  refuses  to  assume  jurisdiction  and  hear  a  cause,3  or 
the  county  commissioners  refuse  to  take  cognizance  of  a 
claim  against  the  county.4 

§  37.  Mandamus  not  lie  when  officer  has  acted  in  dis- 
cretionary matter.— When  an  officer,  body  or  tribunal  has 
acted  in  a  matter  which  calls  for  the  exercise  of  judgment 
or  discretion,  the  writ  of  mandamus  does  not  lie  to  review 
or  reverse  such  action.5 

§  38.  Exceptions  as  to  interfering  with  acts  involving 
discretion.—  The  proposition  just  stated  must,  however,  be 
received  with  some  qualification  or  explanation.  The  courts 
have  sometimes  interfered  in  such  cases,  and  have  by  the 
writ  of  mandamus  reviewed  the  judicial  actions  of  officers 
or  inferior  tribunals.  In  some  cases  it  was  held  that  the 
admitted  facts  showed  that  the  action  was  taken  under  a 

1  Com.  v.  Taylor,  36  Pa.  St  2G3.  ford's  Case,  1  Mod.  82 ;  King  v.  Ely 

2  Reg.  v.  Goodrich,  19  L.  J.  Q.  B.  (Bishop),  5  Term  R  475 ;  Weeden 
413;  S.  C.  reported  as  Reg.  v.  Lei-  v.  Richmond  (Council),  9  R.  I.  128; 
cester,  15  Q.  B.  671.  Collarn's  Petition,  134  Pa.  St  551 ; 

3  People  v.  Swift,  59  Mich.  529;  Burnet  v.  Portage  Co.  (Aud.),  12 
State  v.  Laughlin,  75  Mo.  358 ;  post,  Ohio  St  54 ;  Com.  v.  Cockran,  6 
g  OQ3.  Binn.  456 ;  Tilden  v.  Sacramento  Co. 
b  'State  v.  Hamilton  Co.  (B'd  (Sup'rs),  41  Cal.  68 ;  State  v.  Health 
Com'rs),  26  Ohio  St  364.  Board  (State),  103  Mo.  22 ;  Scripture 

a  Hoole  v.  Kinkead,  16  Nev.  217 ;  v.  Burns,  59  Iowa,  70 ;  Insur.  Co.  v. 

King   v.  Cambridgeshire  (Just),  1  Wilder.  40  Kans.  561 ;  State  v.  Carey 

D.   &  R.   325;    People    v.   Albany  (N.  Dak.,  June  16, 1891),  49  North  W. 

(Sup'rs),  12  Johns.  414 ;  Younger  v.  Rep.  164 ;   Hayes,  Ex  parte  (Ala., 

Board  Sup'rs,  68  Cal.  241 ;  State  v.  April  9,  1891),  9  South.  R  156. 
Lafayette  Co.  Ct,  41  Mo.  221 ;  Apple- 


q 


8  GENERAL   PRINCIPLES.  [§  39. 


misapprehension  of  the  law,  so  that  the  officer  could  not 
be  considered  to  have  exercised  his  discretion  in  the  mat- 
ter; in  other  cases  the  conclusions  reached  were  due  to 
matters  of  fact  not  involved  in  the  discretion  given,  or  to 
mistakes  in  law  not  germane  thereto;  in  other  cases  the 
courts  claimed  a  great  latitude  in  interfering  with  inferior 
courts  by  reason  of  their  supervisory  power  over  them. 

§39.  Illustrations  of  such  interference. —  When  a  de- 
cision itself  showed  that  the  quarter  sessions  had  not  ex- 
ercised their  discretion,  the  writ  issued  to  compel  them  to 
do  so.1  A  vestry  had  a  discretion  as  to  the  amount  of  pen- 
sion they  should  allow  a  retiring  officer,  but  they  thought 
they  had  no  discretion  as  to  the  amount  under  a  prior  de- 
cision of  the  court,  and  accordingly  refused  any  pension, 
though  they  had  determined  to  allow  a  smaller  pension. 
From  the  report  these  facts  seem  to  have  been  admitted  in 
the  argument.  It  was  held,  that  they  could  not  be  con- 
sidered to  have  exercised  their  discretion  in  a  proper  man- 
ner, and  the  writ  of  mandamus  was  issued  to  them  to  con- 
sider and  determine  the  application.2  When  the  quarter 
sessions  dismissed  an  appeal  for  want  of  notice  thereof, 
which  no  rule  required,  the  writ  issued.3  The  English  courts 
have  also  corrected  errors  of  judgment  in  the  exercise  of 
such  discretion,  which  clearly  appeared  on  the  record.  A 
litigant  served  a  notice  of  appeal  one  day  later  than  the 
time  fixed  by  rule.  He  mistook  the  rule,  believing  that 
either  the  day  of  service  or  the  day  of  hearing  could  be  in- 
cluded in  the  computation  of  time,  whereas  the  rule  ex- 
cluded both  days.  The  justices  refused  to  hear  the  appeal. 
The  court  of  kings  bench  considered  that  under  its  vis- 
itorial  jurisdiction  the  court  could  ascertain  whether  the 
justices  had  exercised  their  discretion  property.  The  court 
decided  that  justice  would  be  better  subserved  by  a  hear- 


iR.  v.  Adamson,  1  Q.  B.  D.  201.        3R.  v.  West  Riding  of  Yorkshire, 
2  Q.  v.  St  Pancras,  24  Q.  B.  D.    5  B.  &  Ad.  667. 
37  L 


§  39.]  GENERAL    PRINCIPLES.  39 

ing,  and  ordered  the  justices  to  entertain  the  appeal.1  In 
another  case  it  was  admitted  that  the  justices  had  a  dis- 
cretion in  deciding  what  was  a  reasonable  time  for  giving 
notice  of  appeal.  They  had  adopted  a  new  rule  on  the  sub- 
ject, of  which  the  appellant's  attorney  had  no  notice.  He 
gave  his  notice  according  to  the  former  practice.  The  jus- 
tices refused  to  hear  the  appeal.  The  court  considered  that 
the  justices  had  not  exercised  their  discretion  properly,  and 
issued  its  writ  to  compel  them  to  consider  the  appeal.2 
Lord  Tenterden  said :  "  It  is  true  in  some  instances,  where 
the  sessions  have  established  a  rule,  which  in  its  operation 
has  been  found  manifestly  inconvenient  for  the  purposes  of 
justice,  the  court  has  interfered  to  control  their  discretion, 
but  it  is  going  a  great  length."  3  Under  the  statute  the 
justices  had  a  right  to  fix  the  wages  of  millers.  The  justices 
had  decided  against  the  petition  of  the  millers  to  have  their 
wages  fixed.  They  admitted  they  did  so  because  they  be- 
lieved the  law  did  not  apply  to  millers.  They  were  ordered 
to  hear  the  request,  and  then  to  determine  whether  in  their 
discretion  they  thought  proper  to  fix  a  rate  of  wages.4  A 
court,  having  a  supervisory  superintending  control  over 
other  courts  by  mandamus,  claimed  that  such  control  was 
as  broad  as  the  exigency  of  the  case.  It  held,  that  if  a 
lower  co  rt  had  plainly  erred  on  a  point  of  practice,  either 
by  misapprehending  its  own  rules  or  a  plain  rule  of  law, 
and  in  consequence  had  dismissed  an  appeal,  a  writ  of  man- 
damus would  lie  to  correct  and  remedy  the  erroneous  and 
arbitrary  exercise  of  its  discretion.5  Where  a  board  of  pub- 
lic improvements  refused  to  issue  a  license  because  the  ap- 
plicant therefor  would  not  comply  with  certain  conditions, 
which  they  had  imposed  without  authority  of  law,  a  man- 
damus was  issued  to  compel  the  granting  of  the  license.6 

iKins;  v.  Lancashire  (Just),  7  B.  4Kiug  v.    Kent  (Just),  14  East. 

&  C.  691.  395. 

2  King    v.    Wiltshire    (Just),  10  &  State  v.  Philips,  97  Mo.  331. 
East,  404  6  State  v.  Flad,  23  Mo.  Ap.  185. 

3  Becke,  Ex  parte,  3  B.  &  Ad.  704. 


40  GENERAL    PRINCIPLES.  [§  39. 

A  party  was   entitled  by   law  to  a  renewal  of  his  ferry 
license,  if  be  bad  properly  conducted  tbe  business  during 
tbe  prior  year.     Tbe  county  commissioners  found  no  fault 
with  bis  conduct,  but  refused  to  renew  his  license  because 
his  ferry  franchise  had  been  sold  under  a  judgment  against 
him,  which  sale  they  believed  conveyed  his  title  (whereas 
his  franchise  was  not  legally  vendible  under  an  execution), 
and  they  issued  a  license  to  the  purchaser.     The  county 
commissioners  were  required  by  mandamus  to  renew  the 
license.1     Where  an  officer  was  entitled  to   judge  of  the 
sufficiency  of  a  bond,  but  stated  in  his  return  that  he  re- 
fused to  issue  the  license  because  he  thought  the  law  allowed 
him  to  decide  who  were  proper  parties  to  receive  licenses, 
the  court,  finding  that  the  officer  was  not  allowed  discre- 
tion in  that  matter,  ordered  him  to  issue  the  license.2    In 
passing  on  a  bond  offered  as  security  for  an  attachment  the 
clerk  was  considered  to  be  acting  in  a  ^a^'-judicial  ca- 
pacity, and  if  he  should  refuse  to  accept  such  a  bond  because 
he  considered  the  sureties  to  be  insufficient,  or  for  no  as- 
signed reason,  a  mandamus  would  not  lie  to  him  to  accept 
the  bond ;  but  if  he  based  his  refusal  on  a  reason  insufficient 
in  law,  a  mandamus  would  lie.3    This  last  decision  has  been 
assailed  on  the  ground  that  it  is  immaterial  that  the  discre- 
tion granted  has  been  guided  by  a  mistaken  reason.4   "  The 
prohibition  to  interfere  does  not  lose  its  force  because  a 
wrong  reason  has  led  to  a  wTrong  conclusion.     The  books 
abound  in  cases  where  the  courts  refuse  mandamus  not- 
withstanding the  mistake  or  error  of  the  officer  whose  dis- 
cretion   is   sought  to   be   controlled,  and   it  would  be  an 
anomaly  to  hold  that   refusal   is   proper   when   a   wrong 
conclusion  is  reached  without  giving  the  reason  for  it,  but 
not  proper  if  the  reason  be  given  and  it  is  found  not  a  good 

i  Thomas  v.   Armstrong,  7    Cal.  *  State  v.  Barnes,   25  Fla.    293; 

286.  State  v.   Joint  School  District,  65 

2  People  v.  Perry,  13  Barb.  206.  Wis.  631 ;  Ramagnano  v.  Crook,  85 

3  Mobile,  etc.  Co.  v.  Cleveland,  76  Ala.  226. 
Ala  321. 


§  40.]  GENERAL   PRINCIPLES.  41 

one."     The  courts  "  only  check  the  exercise  of  discretion 
when  assumed  in  regard  to  matters  not  properly  within  it, 
or  when  mistake  is  made  in  law  not  germane  to  the  discre- 
tion."    The  case  from  which  the  above  citations  are  taken 
was  also  concerning  the  rejection  of  a  bond,  and  the  court 
considered  it  immaterial  whether  the  respondent's  objec- 
tions to  the  legality  of  the  bond  were  correct,  since  his 
mistake,  if  any,  could  not  be  corrected  by  a  mandamus.1  In 
one  case  the  court  said  that  though  a  county  board  has  a 
discretion  as  to  when  and  how  it  shall  repair  the  roads,  yet 
if  it  should  wholly  neglect  to  repair  the  roads,  it  could  be 
compelled  to  proceed  to  repair,  but  not  in  a  specific  manner.2 
§  40.  Mandamus  when  fraud  or  prejudice  has  influ- 
enced discretionary  action.— Again  it  may  happen,  that 
the  person  or  tribunal  charged  with  discretion  or  with  a 
judicial  decision  of  the  matter  has  been  influenced  by  fraud, 
passion,  adverse  interest  or  prejudice  in  its  action.    In  such 
cases  justice  requires  that  there  should  be  some  redress. 
Accordingly,  when  such  parties  have  acted  in  bad  faith  or 
corruptly  in  reaching  their  decisions,  the  courts  hold  that 
their  conclusions  may  be  reviewed  by  the  writ  of  mandamus? 
But  the  question  remains,  how  shall  it  be  determined  that 
there  has  been  an  abuse  of  discretion.     The  rulings  of  the 
courts  are  not  in  harmony  on  this  proposition.     If  the  tri- 
bunal or  officer  has  a  discretion  to  find  one  way  or  the  other, 
to  do  the  act  or  not  to  do  it,  the  mere  fact  that  it  has  de- 
cided one  way  rather  than  the  other  cannot  warrant  the  con- 
clusion that  it  has  acted  in  bad  faith  or  corruptly.  The  courts 
have  said  that  where  there  is  a  right  of  approving  a  fit  per- 

i  State  v.    Barnes,    25    Fla.    298,  ley,  Ex  parte,  7  Wall.  364 ;  Virginia 

where  manydecisions  are  reviewed ;  v.  Rives,   100  U.   S.   313;   State  v. 

People  v.  Allegan  Circuit  Judge,  Cramer,     96    Mo.     75;    People    v. 

29  Mich.  487.  Turner,  1  Cat  143 ;  Brokaw  v.  High- 

2  St.  Clair  County  v.  People,  85  way  Coni'rs,  130  111.  482;  Arberry 

111.  396.  v.  Beavers,  6  Tex.  457 ;  Louisville 

» Newport  (City)  v.  Berry.  80  Ky.  (City)  v.  Kean,  18  B.  Mon.  9 ;  Poor 

354;  Davis  v.  Co.  Coni'rs,  63  Me.  Com'rs  v.  Lynah,  2  McCord,  170; 

396 ;  Lord  Denman  in  R.  v.  Dar-  Schlaudecker  v.  Marshall,  72  Pa  St 

lington,  12  L.  J.  Q.  B.  128;  Brad-  200. 


42  GENERAL    PRINCIPLES.  [§  40. 

son  to  office,  such  discretion  must  be  exercised  in  a  fair, 
candid    and  unprejudiced  manner,  but  that  they  will  not 
compel  a  disclosure  of  the  grounds  by  which  the  conclusion 
was  arrived  at.1     In  a  mandamus  proceeding  to  admit  and 
swear  in  the  relator  as  an  alderman,  the  return  was  that  the 
respondents  had  examined  into  the  matter  and  had  deter- 
mined that  the  relator  was  not  a  fit  person  to  be  an  alder- 
man, as  the  law  authorized  them  to  do.     All  the  judges 
held,  that  the  respondents  were  not  required  to  state  the 
grounds  for  their  conclusion,  and  Pattison,  J.,  considered 
that  it  would  be  improper  for  them  to  do  so,  but  Taunton,  J., 
said  that  if  they  did  allege  their  reasons,  and  such  reasons 
were  bad,  the  court  would  interfere.2     Again  the  return 
itself  has  been  held  to  be  a  conclusive  disproof  of  any  fraud 
or  prejudice.     "When  in  an  application  for  a  mandamus  to 
compel  a  village  board  to  approve  the  bond  of  a  liquor 
dealer,  it  was  alleged  that  the  board  had  arbitrarily  refused 
to  receive  the  bond,  and  the  sworn  return  stated  that  they 
had  examined  it  and  upon  investigation  found  the  sureties 
to  be  insufficient,  stating  the  ascertained  resources  of  each 
surety,  the  court  held  that  there  was  nothing  to  show  that 
their  discretion  was  not  exercised  reasonably  and  in  good 
faith.3   Such  a  ruling  would  enable  the  respondents  in  every 
case  to  defeat  any  effort  to  review  their  actions  in  matters 
involving  discretion  or  judgment  by  merely  inserting  proper 
allegations  in  their  returns;  but  the  weight  of  authority 
does  not  sustain  this  ruling.     Where  the  respondents  give 
their  reasons  for  their  action,  which  reasons  are  adjudged 
to  be  invalid,  of  course  no  difficulty  is  presented.4     Where 
a  party  had  a  discretion  as  to  the  approval  of  a  bond  solely 

1  Lord  Ellenbury  in  R.  v.  Canter-  2  King  v.  London  (Mayor),  3  Barn, 

bury  (Archb.),  15  East,  139 ;  Lord  &  Ad.  255. 

Holt  in  Phillips  v.  Bury,  2  T.  R.  356,  3  Palmer  v.  Hartford  (Village),  73 

his  dissenting  opinion   being  sus-  Mich.  96. 

tained  on  appeal,  1   L.  Raym.  5;  4  King  v.  London  (Mayor),  3  Barn. 

Mobile,   etc.    Co.   v.   Cleveland,   76  &  Ad.  255. 
Ala.     321 ;      King     v.     Gloucester 
(Bishop),  2  B.  &  Ad.  158. 


§  40.]  GENERAL   PRINCIPLES.  -  :J 

relative  to  the  responsibility  of  the  sureties  thereon,  and  it  ■ 
appeared  by  the  pleadings  in  the  mandamus  proceedings 
that  his  objections  to  the  bond  did  not  relate  to  the  sure- 
ties, a  peremptory  writ  was  issued  ordering  the  approval 
of  the  bond.1     When  a  court  had  only  a  limited  discretion 
about  issuing  licenses  to  wholesale  liquor  dealers,  it  was 
held  that  if  the  return  to  the  alternative  writ  showed  no 
reason,  or  one  invalid  under  the  law,  for  refusing  the  license, 
the  mandamus  should  issue;  that  if  it  showed  a  sufficient 
ground  for  such  refusal  the  proceedings  must  be  dismissed.2 
In  a  similar  case  the  court  said  that  if  a  remonstrance 
ao-ainst  the  issuance  of  the  license  was  filed  and  heard  as 
shown  by  the  return,  it  would  thereby  appear  there  was 
sufficient  reason  for  the  refusal,  and  the  writ  would  be  de- 
nied.3   In  some  cases  the  courts  have  held  the  abuse  of  dis- 
cretion to  be  admitted,  because  the  cases  were  submitted 
on  demurrers  to  the  alternative  writ,  thereby  admitting 
the  charge  made  in  the  writ,  or  because  the  returns  did  not 
properly  meet  the  allegations  of  the  alternative  writ,  and 
they  have  proceeded  to  grant  the  relief  asked.4     Where 
malice  and  an  attempt  to  use  discrimination  in  order  to 
build  up  an  institution  in  which  the  respondents  were  in- 
terested, and  to  destroy  opposition  thereto,  were  directly 
charged,  such  charges  were  considered  to  be  admitted  by 
the  submission  of  the  cause  on  demurrer.5    When  a  county 
court  refused  to  hear  any  testimony  relative  to  a  bond  offered 
for  its  approval,  or  to  pass  on  the  sufficiency  of  the  security 
offered,  the  court  ordered  the  county  court  to  accept  and 
approve  the  bond,  the  case  having  been  submitted  on  a  de- 
murrer to  the  alternative  writ.6   In  a  similar  case  submitted 
on  demurrer,  the  county  court,  after  arbitrarily  rejecting  the 

iBriggs  v.  Hopkins,  16  R.  I.  83;  ^Zanove  v.  Mound  City,  103  111. 

McLeocl  v.  Scott  (Oreg.,  June  24,  552. 

1891),  26  Pac.  Rep.  1061.  5  Dental  Examiners  v.  People,  123 

2  Prospect  B.  Co.'s  Petition,  127  Pa.  DL  227. 

St.  523.  estate  v.  La  Fayette  Co.,  41  Mo. 

sCollarn's  Petition,  134   Pa    St.  545. 
551. 


44  GENERAL   PRINCIPLES.  [§  40. 

bond  offered,  at  once  declared  the  office  vacant ;  the  higher 
court  issued  a  peremptory  mandamus  to  accept  and  approve 
the  bond  offered.1  When  the  respondents  in  their  return  fail 
to  give  their  reasons  for  their  official  action  in  refusing  to 
issue  a  license,  to  which  any  citizen  is  entitled  upon  placing 
himself  within  the  provisions  of  the  law,  and  in  their  answer 
assume  that  they  are  the  sole  arbiters  of  the  question,  the 
court  can  only  assume  that  they  have  acted  arbitrarily  and 
without  reason.2    In  such  matters  the  officers  cannot  reject 
a  petition  without  assigning  any  reason  and  without  allow- 
ing relief  to  the  appellant  by  an  appeal  to  the  courts.   They 
must  assign  their  reasons  for  their  action  that  the  petitioner 
may  have  a  chance  to  remove  their  objections.3     There  are 
a  number  of  decisions  to  the  effect,  that  the  relator  must 
allege  and  prove,  unless  it  is  admitted,  that  the  officer  has 
exercised  his  judgment  in  a  fraudulent  or  arbitrary  manner, 
before  the  court  will  interfere  in  his  behalf,  and  that  it  will 
then  grant  him  the  desired  relief.4    Where  it  was  objected, 
that  a  mandamus  could  not  issue  to  compel  a  city  to  issue  its 
bonds  to  a  railroad  in  accordance  with  its  subscription,  be- 
cause the  city  council  was  first  to  certify  that  the  work  was 
done  properly  and  to  its  satisfaction,  the  court  said  that,  if 
an  official  duty  is  to  be  performed  on  the  happening  of  an 
event,  the  officer  cannot  arbitrarily  or  capriciously  refuse 
to  perform  it  after  the  event  has  happened.    If  the  fact  ex- 
ists and  is  established  by  sufficient  proofs,  it  is  his  legal  duty 
to  be  satisfied  and  to  act  accordingly.     The  fact  of  the  due 
performance  of  the  work  being  shown  in  the  mandamus 
proceeding  the  peremptory  writ  was  awarded.5   It  has  been 

1  State  v.  Texas  Co.,  44  Mo.  230.  required  them  to  do  so.    Parker  v. 

*  Amperse  v.  Kalamazoo  (City),  Portland,  54  Mich.  308. 
59  Mich.  78.  4  Jones    v.    Moore    Co.    (Com'rs), 

3  Amperse  v.  Kalamazoo  (City),  106  N.  C.  436 ;  State  v.  Health  Board 

59    Mich.    78;   Mixer    v.   Manistee  (State),  103  Mo.  22;  State  v.  Wil- 

County  (Sup'rs),  26  Mich.  423.     In  mington  Common  Council,  3  Harr. 

another    ease   it   was   stated    that  294;  State  v.  Benton,  25  Neb.  834. 
common  courtesy  required  them  to        5  Stockton,  etc.  R.  R  v.  Stockton, 

give  their  reasons,  but  that  no  law  51  Cal.  328. 


§  41.]  GENERAL    PRINCIPLES.  45 

held  that  where  there  is  a  clear  and  manifest  abuse  of  dis- 
cretion, as  where  a  board,  which  bas  a  discretion  on  that 
subject,  should  refuse  to  build  a  bridge,  which  is  absolutely 
and  essentially  necessary  for  the  enjoyment  of  an  ancient 
highway,1  or  the  board  of  trustees  of  a  town,  with  a  discre- 
tionary power  in  the  matter,  should  refuse  to  provide  for 
the  improvement  of  the  public  streets,  when  the  necessity 
for  such  action  is  so  apparent  and  obvious  as  to  justify  the 
inference  that  they  have  determined  not  to  discharge  a 
plain  duty,2  the  writ  of  mandamus  will  issue.  In  these 
cases  it  is  evident  that  parol  testimony  would  be  required 
to  prove  such  necessity.  In  proceedings  to  restore  attor- 
neys who  have  been  disbarred  by  the  courts,  evidence  is 
freely  introduced,  and  the  attorney  is  restored  if  it  is  found, 
that  the  court  decided  erroneously  on  the  testimony,  or  the 
case  is  outside  of  the  exercise  of  the  lower  court's  discre- 
tion, or  is  one  of  irregularity,  or  against  law,  or  of  flagrant 
injustice,  or  without  the  jurisdiction  of  the  lower  court.3 

§  41.  The  abuse  of  discretion  must  be  flagrant.— But 
the  action  of  an  officer  in  a  matter  which  calls  for  the  ex- 
ercise of  his  discretion  or  judgment  will  not  be  reviewed 
by  the  writ  of  mandamus,  unless  he  has  been  guilty  of  a 
clear  and  wilful  disregard  of  his  duty,4  or  such  action  is 
shown  to  be  extremely  wrong  or  flagrantly  improper  and 
unjust,5  so  that  the  decision  can  only  be  explained  as  the 
result  of  caprice,  passion  or  partiality."  The  weight  of 
authority  is  evidently  to  the  effect  that  such  abuse  of  dis- 
cretion can  be  proved  by  evidence  in  a  mandamus  proceed- 
ing, but  the  proof  must  be  very  clear  and  convincing,  and 
the  allegations  thereof  ought  to  state  the  grounds  for  such 

1  State  v.  Essex  (Freeholders).  23  Davis  v.  County  Com'rs,  63  Me.  39G ; 

N.  J.  L.  214.  State  v.  Kirke,  12  Fla.  278;  Vincent 

2Catlettsburg  (Trustees)  v.  Kin-  v.  Bowes,  78  Mich.  315;  Manor  v. 

ner,  13  Bush,  334.  McCall,  5  Ga.  522. 

3  State  v.  Kirke,  12  Fla.  278;  Brad-  5  Burr,  Ex  parte,  9  Wheat.  529; 
ley,  Ex  parte,  7  Wall.  364 ;  People  v,  R  v.  Essex  (Just),  2  Chit  385. 
Turner,  1  Cal.  143.  6  Detroit,  etc.  Co.  v.  Gartner,  75 

4  State  v.   Benton,  25   Neb.  834;  Mich.  360. 


46  GENERAL   PRINCIPLES.  [§§  42,  43. 

belief.  Simply  to  say  in  a  petition  for  a  mandamus  that 
the  officer  abused  his  discretion  is  merely  to  apply  an 
epithet  without  denning  the  act.1 

§  42.  Writ  of  mandamus  will  not  lie  to  undo  what  has 
been  done. —  When  there  is  nothing  to  be  done  but  to  en- 
force a  legal  duty,  the  writ  of  mandamus  will  lie,  but  if 
anything  remains  to  be  done  or  fact  to  be  ascertained,  the 
writ  will  not  lie.'2  A  mandamus  was  applied  for  to  compel 
the  county  treasurer  to  pay  a  warrant  of  the  board  of  police. 
The  return  stated  that  the  warrant  was  to  be  paid  in  Con- 
federate money.  It  was  held  that  in  such  a  proceeding 
the  difference  in  value  between  such  money  and  legal 
money  could  not  be  ascertained,  and  the  writ  was  dis- 
missed.3 The  writ  lies  to  do  what  ought  to  be  done  and 
not  to  undo  what  ought  not  to  have  been  done.4  Where  a 
corporation  has  affixed  its  seal  to  its  register  of  sharehold- 
ers, a  mandamus  to  compel  it  to  take  its  seal  from  such  reg- 
ister was  refused.5 

§  43.  Mandamus  and  injunction  contrasted. —  Man- 
damus and  injunction  should  not  be  confounded.  The  lat- 
ter is  used  to  prevent  action,  to  maintain  affairs  in  statu 
quo.  The  former  is  compulsory,  commanding  something 
to  be  done.  An  injunction  is  preventative  and  protective 
merely,  and  not  restorative.6  It  interposes  between  the 
complainant  and  the  injury  he  fears  or  seeks  to  avoid.  If 
the  injury  be  already  done,  the  writ  can  have  no  operation, 
for  it  cannot  be  applied  correctively  so  as  to  remove  it.  It 
is  not  used  for  the  purpose  of  punishment,  or  to  compel 
persons  to  do  right,  but  simply  to  prevent  them  from  doing 
wrong.7     It  is  sometimes  used  as  an  affirmative  remedy, 

i  Detroit,  etc.  Co.  v.  Gartner,  75  5  Nash,  Ex  parte,  15  Q.  B.  92. 

Mich.  BOO.  6  Washington  University  v.  Green, 

2  Webster  v.  Newell,  G6  Mich.  503.  1  Md.  Ch.  97 ;  Sherman  v.  Clark,  4 

3  Clayton  v.  McWilliams,  49  Miss.  Nev.  138;  Crawford  v.  Carson,  35 
311  Ark.  5G5. 

*  White's  Creek  T.   Co.  v.   Mar-        "  Attorney-General  v.  New  Jersey 
shall,  2  Baxt.  104 ;  Burtis,  Ex  parte,    R.  &  T.  Co.,  3  N.  J.  Eq.  136. 
103  U.  S.  238 ;  Nash,  Ex  parte,  15 
Q.  B.  92. 


§  41. J  GENERAL    PRINCIPLES.  47 

but  only  by  the  chancery  court  to  carry  into  effect  its  own 
decrees,1  commanding  the  party  not  to  allow  things  to  con- 
tinue in  the  condition  in  which  they  have  been  allowed  to 
become.2  Mandamus,  however,  is  compulsory  and  requires 
the  doing  of  an  act.3  It  lies  to  command  the  doing  of  what 
ouo-ht  to  be  done,  and  not  to  undo  what  has  been  done.4  It 
does  not  revise  nor  correct  action.5  It  cannot  command  to 
abstain  from  a  tort  or  abuse  of  office.'*  It  never  had  the 
effect  of  the  old  writ  of  de  molestando.1  It  will  be  refused 
to  prevent  one  claiming  to  be  elected  from  exercising  his 
office  or  to  enjoin  him  from  qualifying.8  When  officers  re- 
quested a  urn  mil  in  us  to  prevent  others  from  molesting  them 
in  the  exercise  of  the  functions  and  powers  of  their  offices, 
the  court  refused  the  writ,  stating  that  if  the  writ  were 
issued  for  such  cause,  it  would  become  merely  a  substitute 
for  an  injunction.9  Such  substitution  will  not  be  allowed.10 
§  44.  Are  preliminary  questions  judicial  or  minis- 
terial '?  —  It  often  happens  that  a  ministerial  duty  exists, 
which  may  be  enforced  by  the  writ  of  mandamus  provided 
certain  facts  exist.  It  becomes  important  to  decide  whether 
the  determination  as  to  the  existence  of  such  facts  is  a 
judicial  or  ministerial  act.  Hardly  a  case  can  be  imagined 
when  a  public  officer  or  tribunal  is  required  to  take  action 
upon  the  happening  of  an  event  or  upon  the  existence  of  a 
certain  condition  of  things  wherein  there  is  not  some  dis- 

i  Walkley  v.  City  of  Muscatine,  6  9Legg  v.  Annapolis,  42  Mtl.  203. 

Wall.  481.  io  Crawford  v.  Carson,  35  Ark.  5C5. 

2  Washington  University  v.Green,  In  Gayle  v.  Owen  Co.  Court,  83  Ky. 
1  Md.  Ch.  97.  61,  a  mandamus  was  considered  to 

3  Crawford    v.   Carson,   35    Ark.  be  the  proper   remedy  to  prevent 
565 ;  Peat's  Case,  6  Mod.  229.  the  judge  and  the  clerk  of  a  county 

i  White's   Creek   T.    Co.   v.   Mar-  court  from  recording  the  vote  upon 

shall,  2  Baxt.  104;  Burtis,  Ex  parte,  a  local  option  law  when  the  law 

103  U.   S.   238;   Nash,   Ex  parte,  5  was     unconstitutional.      The     law 

Q.  B.  92.  made  such  record  conclusive  that 

5  Harris,  Ex  parte,  52  Ala.  87.  all  the  proceedings  tinder  it  were 

6  Reg.  v.  Peach,  2  Salk.  572.  regular.     It  is  not  seen  why  an  in- 

7  Peat's  Case,  6  Mod.  229.  junction  would  not  have  been  the 

8  People  v.  Ferris,  76  N.  Y.  326.  proper  remedy. 


48  GENERAL   PRINCIPLES.  [§  45. 

cretion  to  be  exercised  as  to  whether  the  event  has  hap- 
pened, or  whether  the  condition  of  things  has  occurred.  A 
board  canvassing  election  returns  must  determine  whether 
the  papers  submitted  to  them  as  the  returns  are  genuine. 
A  marshal  or  sheriff,  when  a  civil  or  criminal  process  is 
placed  in  his  hands  to  be  served,  must  determine  whether 
he  is  serving  or  arresting  the  proper  party  or  attaching  the 
proper  property.  Any  board  or  tribunal  called  on  to  act 
must  determine  whether  the  proper  parties  are  before  it, 
and  whether  the  facts  exist  calling  for  its  action.  If  such 
determination  is  judicial  and  is  adverse  to  the  taking  of  any 
action,  such  officer  or  board  cannot  be  called  on  to  do  an 
act  which  it  is  his  or  its  duty  to  do  only  in  case  the  facts 
are  different  from  such  conclusion,  because  no  judicial  de- 
termination can  be  reviewed  or  overthrown  in  mandamus 
proceedings.  If  it  should  be  held  chat  in  all  cases  the  de- 
termination of  such  preliminary  questions  calls  for  the 
exercise  of  judicial  discretion,  the  writ  of  mandamus,  as  has 
often  been  said,  might  as  well  be  expunged  from  the 
remedial  code.  If  such  determination  is  not  an  exercise  of 
judicial  discretion,  then  the  courts  can  review  such  deter- 
mination, and,  finding  that  the  facts  justify  the  demand,  can 
order  the  performance  of  the  ministerial  act,  which  is  a 
duty  under  those  circumstances.  In  their  conclusions  on 
this  question  the  courts  are  not  in  harmony. 

§  45.  English  rule  as  to  preliminary  questions. —  The 
English  courts  have  held  that  when  a  subordinate  tribunal 
or  board  decides  on  a  point,  preliminary  to  the  whole  case, 
or  to  the  reception  of  a  particular  piece  of  evidence,  that  it 
will  not  hear  the  case  further,  that  such  action  is  conclusive 
on  any  point  involving  a  matter  of  fact  only,  and  the  writ 
will  not  issue ;  but  if  the  point  decided  involves  a  matter 
which  the  court  can  see  to  be  a  question  of  law,  the  decision 
may  be  reviewed  by  this  writ.1     In  a  later  case  Lord  Cock- 

1  Q.  v.  Kesteven  (Just.),  3  Q.  B.  Reg.  t.  Liverpool,  1  Eng.  L.  &  Eq. 
810;  R.  v.  Flintshire  (Just),  11  Jur.  291;  Q.  v.  Brown,  7  Ellis  &  B.  757; 
185;  Q.  v.  Leicester,  15  Q.  B.  671 ;     Milner,  Ex  parte,  6  Eng.  L.  &  Eq. 


§  46.]  GENERAL    PRINCIPLES.  49 

burn  qualified  this  by  saying,  that  if  the  question  turned  on 
a  matter  of  fact,  the  circumstances  must  be  very  special  to 
induce  the  court  to  interfere  by  this  writ.1 

§  46.  American  rule  as  to  preliminary  qnestions. — 
The  United  States  supreme  court  holds  that,  when  it  is  nec- 
essary for  the  officer  or  tribunal  to  hear  evidence  to  deter- 
mine the  question,  the  decision  is  judicial  and  not  reviewable 
by  mandamus.2  In  New  York,  when  a  subordinate  body 
is  vested  with  power  to  determine  a  question  of  fact,  the 
duty  is  judicial.3  In  Missouri  it  is  decided  that  if  an  in- 
ferior tribunal  declines  to  hear  a  case  upon  what  is  termed 
a  preliminary  objection,  and  the  objection  is  purely  a  mat- 
ter of  law,  the  writ  will  issue  if  such  tribunal  has  miscon- 
strued the  law.4  In  fact  most  of  the  authorities  agree 
that,  if  the  tribunal  dismisses  the  case  under  the  mistaken 
conclusion  that  it  has  not  jurisdiction  thereof,  its  action 
will  be  reviewed  by  the  writ,  and  it  will  be  compelled  to  pass 
on  the  subject.5  The  writ  was  issued  against  the  mayor  of 
a  city  to  compel  him  to  sign  an  order  against  the  city  for 
the  payment  of  money,  though  he  was  first  required  to 
satisfy  himself  that  the  claim  was  audited,  that  the  city 
council  had  authority  to  appropriate  money  for  such  a 
claim,  and  that  it  had  made  the  appropriation.6  In  Louisi- 
ana, when  the  court  refuses  to  go  into  the  trial  of  a  case 
upon  an  erroneous  construction  of  a  question  of  law  or 
of  practice,  preliminary  to  the  whole  case,  this  writ  will 
issue.7  In  Texas  it  is  considered  to  be  immaterial  whether 
the  act  is  a  preliminary  one,  but  that  the  nature  of  the 
question  on  which  the  court  is  called  to  act,  and  the  char- 

371 ;  Q.  v.  Richards,  20  L.  J.  Q.  B.  *  Castello  v.  St.  Louis  Cir.  Ct.,  28 

351 ;  King  v.  Frieston  (Inhab.),  5  B.  Mo.  259. 

&  Ad.  597.  5  Parker,  Ex  parte,  120  U.  S.  737 ; 

1  R  v.  Monmouth  (Mayor),  L  R.  5  Beguhl  v.  Swan,  39  CaL  411 ;  State 
<2-  B.  251.  v.  Laugh!  in,  75  Mo.  358.    See  §  203. 

2  Secretary     v.     McGarrahan,    9  6  State  v.  Ames,  31  Minn.  440. 
Wall.  298.  7  state  v.  Ellis,  41  La.  An.  41. 

3  People  v.  Troy  (Com.  Coun.),  78 
N.  Y.  33. 

4 


50  GENERAL    PRINCIPLES.  [§  46. 

acter  of  the  judgment  which  it  must  render,  decide  the 
nature  of  the  act.  "Where  a  court  dismissed  an  appeal  be- 
cause it  considered  that  the  appeal  bond  was  insufficient,  its 
action  was  considered  to  be  judicial,  and  the  writ  was  re- 
fused, though  no  appeal  or  writ  of  error  was  allowable.1  In 
several  other  cases  in  other  states,  where  the  appeal  was  dis- 
missed for  lack  of  jurisdiction,  either  of  the  individual  case 
or  of  any  cases  of  that  nature,  such  action  was  held  to  be 
judicial  and  therefore  not  reviewable  by  mandamus?  though 
there  was  no  other  remedy,3  and  sometimes  for  the  addi- 
tional reason  that  such  a  use  of  the  writ  of  mandamus 
would  convert  it  into  a  writ  of  error.4  "When  a  mayor  was 
requested  to  call  an  election  in  accordance  with  the  law, 
providing  therefor  in  case  fifty  qualified  voters  signed  the 
petition,  and  there  was  a  surplus  to  territory,  when  a  division 
thereof  by  vote  was  authorized,  it  was  considered  that  his 
action  in  determining  these  two  facts  called  for  judgment 
and  discretion,  and  upon  his  refusal  to  call  the  election,  a 
writ  against  him,  to  compel  him  to  do  so,  was  refused.5  The 
decision  of  an  auditing  officer  is  conclusive  as  to  the  amount 
which  the  law  permits  him  to  allow,  but  his  decision  as  to 
whether  the  claim  is  in  its  nature  within  the  statute  is  re- 
viewable on  mandamus?  In  South  Carolina  the  fact,  that  a 
reasonable  doubt  exists  as  to  some  necessary  fact  on  which 
the  duty  of  performance  depends,  does  not  interfere  with 
the  certainty  of  the  duty,  when  the  ascertainment  of  such 
fact  is  the  proper  subject  of  judicial  inquiry,  for  in  that 
case  the  officer,  if  doubtful  as  to  the  fact,  may  put  the  party 
demanding  performance  to  proof  of  such  fact  in  a  proper 
judicial  proceeding  as  in  mandamus.     It  is  admitted,  how- 

i  Ewing  v.  Cohen,  63  Tex.  482.  parte,  108  U.  S.   566 ;  Treadway  v. 

2  People  v.  Dutchess  C.  Pleas  Wright,  4  Nev.  119.  On  this  propo- 
( Judges),  20  Wend.  658 ;  People  v.  sition  the  courts  are  much  divided. 
Weston,  28  Cal.  639;  Goheen  v.  See  §  205,  where  the  question  is 
Myers,  18  B.  Mon.  423.  more  fully  considered. 

3  People  v.  Garnet  t,  130  111.  340.  5  Sansom  v.  Mercer,  68  Tex.  488. 
*  Railway    Co.,    Ex     parte,     103        6  Black  v.  Auditor,  26  Ark.  237. 

U.  S.  794 ;  Baltimore,  etc.  R.  R,  Ex 


§  47.]  GENERAL   PRINCIPLES.  51 

ever,  that  a  public  officer  or  public  body  may  be  clothed 
with  power  to  determine  conclusively  the  existence  of  any 
fact  as  bearing  on  the  performance  of  a  public  duty,  in 
which  case  the  courts  will  not  review  the  decision  arrived  at.1 
§  47.  Subject  continued. —  In  several  states,  whether 
such  preliminary  questions  are  ministerial  or  judicial  de- 
pends upon  the  general  nature  of  the  duties  to  be  per- 
formed, no  matter  how  many  questions  are  to  be  decided 
or  whether  they  involve  matters  of  law  or  of  fact.2  In 
Nevada  the  rulings  are  very  decided.  "  Whether  the  de- 
cision is  judicial  or  ministerial  depends  upon  the  nature  of 
the  act  to  be  commanded  by  the  writ,  and  not  upon  the  de- 
termination of  preliminary  questions.  Such  questions,  no 
matter  how  difficult,  must  be  determined  by  the  officer  in 
advance,  and,  if  he  refuse  to  do  so,  by  the  court,  before 
the  writ  can  issue.  This  applies  whether  such  act  is  purely 
ministerial  or  judicial.  Thus,  before  a  judge  settles  a  bill 
of  exceptions,  he  must  decide  whether  the  party  has  a  right 
to  it,  whether  it  is  in  proper  form,  and  whether  it  is 
regularly  presented.  Such  questions  are  certainly  judicial; 
but  if  he  errs  in  his  conclusions,  a  mandamus  will  issue." 3 
Yet,  when  the  board  of  county  commissioners  were  re- 
quired by  law  to  order  an  election  of  county  officers,  if  five 
hundred  qualified  voters  petitioned  therefor,  it  was  held 
that  the  decision  of  such  board,  as  to  whether  five  hundred 
qualified  voters  so  petitioned,  was  judicial,  and  the  writ  of 
mandamus  was  refused.4  In  Kentucky  it  was  considered, 
that  the  officer's  decision  on  such  preliminary  question  is 
only  the  decision  of  the  other  party  to  the  mandamus  pro- 
ceeding, and  should  not  bind  his  adversary,  and  that  the 
court,  which  has  power  to  issue  the  writ,  must  have  power 
to  determine  all  questions  on  which  depend  the  propriety 

1  Morton  v.  Comptroller-General,  41  Mo.  221 ;  Candee,  Ex  parte,  48 
4  Eich.  (N.  S.)  430.  Ala.  386. 

2  Manns  v.  Givens,  7  Leigh,  689 ;  3  state  v.  Murphy,  19  Nev.  89. 
Doolittle  v.  County  Court,  28  W.  4  State  v.  Eureka  Co.  <Com'rs),  8 
Va.  158 ;  State  v.  Lafayette  Co.  Ct,  Nev.  309. 


52  GENERAL   PRINCIPLES.  [§  48. 

of  granting  or  refusing  it ;  *  yet  in  passing  on  the  question 
of  jurisdiction  of  an  appeal  from  a  justice  of  the  peace,  the 
court  acts  judicially,  though  it  relates  to  a  question  pre- 
liminary to  a  decision  on  the  merits,  and  a  mandamus  will 
not  lie,  no  matter  how  erroneous  the  decision  may  be.2  In 
California  it  is  considered  that  such  discretion  only  exists 
where  the  law  has  given  such  party  power  to  decide  the 
questions  with  intent  that  such  decision  shall  be  final,3  and 
in  Tennessee,  unless  changed  by  appeal  or  review.  In  Ten- 
nessee such  discretion  does  not  exist  when  the  act  to  be 
done  is  ministerial  upon  a  given  state  of  facts,  although 
the  officers  or  tribunal  or  body  must  judge  according  to 
their  best  discretion  whether  the  facts  exist,  or  whether 
they  should  perform  the  act.  In  such  cases  their  actions 
are  reviewable  by  mandamus.*  It  is  always  held  that  the 
actions  of  sheriffs  and  marshals  in  serving  writs  are  purely 
ministerial.5  The  duties  of  boards  engaged  in  canvassing 
election  returns  are  generally  considered  to  be  ministerial.6 
A  judge  may  be  required  by  mandamus  to  sign  a  bill  of 
exceptions.7  In  fact,  a  great  number  of  cases  might  be 
cited  wherein  the  writ  has  been  issued,  though  the  decision 
on  preliminary  facts  involved  judgment  and  discretion. 

§  48.  Summary  of  decisions  on  the  subject. —  The 
weight  of  authority  seems  to  be  that  erroneous  decis- 
ions as  to  preliminary  questions  of  law  may  be  reviewed 
by  this  writ ;  that  erroneous  decisions  as  to  preliminary 
questions  of  fact  may  be  reviewed,  unless  the  general  nature 
of  the  duties  to  be  performed  are  considered  to  be  judicial, 
or  the  law  intended  that  such  decision  should  be  final. 
"When,  however,  in  a  mandamus  proceeding,  the  respondent 
admits  the  existence  of  the  facts,  concerning  the  determina- 
tion of  which  alone  was  any  judgment  or  discrimination 
authorized  on  his  part,  his  duty  becomes  ministerial,  and 

1  Page  v.  Hardin,  8  B.  Mon.  648.  5  Kentucky  v.  Denison,  65  U.  S.  66. 

2  Goheen  v.  Myers,  18  B.  Mon.  423.  6  See  post,  §  178. 

3  Wood  v.  Strother,  76  Cal.  545.  "  See  post,  §  190. 
<  Morley  v.  Power,  73  Tenn.  691. 


§  49.]  GENERAL   PRINCIPLES.  53 

the  writ  of  mandamus  will  issue  to  compel  its  perform- 
ance.1 
§  49.  Mandamus  protects  only  substantial  interests. — 

The  writ  of  mandamus  has  often  been  styled  a  high  pre- 
rogative writ,  the  right  arm  of  the  law.  and  one  of  the 
flowers  of  the  crown.  It  is  not  lightly  called  into  exercise. 
It  will  only  be  used  to  protect  a  person  from  substantial 
injury,2  or  to  secure  or  protect  substantial  rights.3  Accord- 
ingly it  has  been  held  that  it  will  not  issue  unless  temporal 
rights  are  involved.4  In  some  cases  a  restoration  to  mem- 
bership in  a  corporation  has  been  refused  because  such 
membership  was  not  attended  with  fees  or  emoluments, 
and  it  was  therefore  considered  that  no  pecuniary  interest 
was  involved.5  This  view  is  contrary  to  the  weight  of  the 
decisions.  Lord  Mansfield  said  that  the  fact  that  a  pecun- 
iary interest  was  affected  gave  greater  weight  to  the  claim 
for  this  mode  of  redress ;  and  then  he  was  only  referring 
to  a  function.6  It  would  seem  that  in  England  the  neces- 
sity for  pecuniary  interests  being  involved  exists  only  in 
cases  where  restoration  is  sought  to  a  function  dissociated 
from  public  offices  and  from  corporations,7  since  the  writ 
has  often  been  granted  there  relative  to  the  election,  ad- 
mission or  restoration  to  offices  to  which  no  emoluments 
or  compensation  were  attached,  as  aldermen,  vestrymen, 
church-wardens,  overseers  of  the  poor,  poor-law  guarc4ians, 
town  councilors,8  and  also  to  restore  a  person  to  his  honor- 
ary degrees.  Such  degrees  are  only  a  civil  honor.  The 
court  said  that  such  a  case  was  like  that  of  an  alderman, 

1  Henry  v.  Taylor,  57  Iowa,  72 ;  111.  635 ;  State  v.  St  Louis,  etc.  Co., 
Briggs  v.  Hopkins,  16  R  I.  83 ;  21  Mo.  Ap.  526 ;  State  v.  Odd  Fel- 
Noble  Co.  (Com'rs)  v.  Hunt,  33  Ohio  lows'  G.  K,  8  Mo.  Ap.  148 ;  State  v. 
St.  169.  Flad,  26  Mo.   Ap.   500 ;    People  v. 

2  State  v.  Bonnell,  119  Ind.  494.  Anshei  C.  H.  Cong.,  37  Mich.  542; 

3  Pistorius  v.  Stempel,  81  Mich.  People  v.  Board  of  Trade,  80  III.  134. 
133.  6  Kex  v.  Barker,  3  Burr.  1265. 

4  Union  Church  v.  Sanders,  1  7  R  v.  Blooer,  2  Burr.  1045  ;  R  v. 
Houst  100 ;  Runkel  v.  Winemiller,  Jotham,  3  T.  R  575. 

4  Harris  &  McH.  429.  8  R,  v.  Adams,  2  A.  &  E.   409 ; 

5  People  v.  Masonic  B.  Assoc,  98    R.  v.  Norwich,  1  B.  &  Ad.  310. 


5i  GENERAL    PRINCIPLES.  [§  50. 

whose  office  of  itself  is  of  benefit  only  by  consequence.  In- 
terest and  property  are  the  consequence  of  such  degrees.1  In 
America  the  writ  has  often  been  granted  to  restore  persons 
to  offices  or  memberships  in  corporations  where  there  were 
no  fees  or  emoluments ;  as  visitors  to  a  medical  college,2 
trustees  of  an  eleemosynary  corporation,3  and  a  member  of 
a  school  committee.4  The  mere  franchise  of  membership 
in  a  corporation  is  property,5  and  for  that  reason  certain 
courts  have  issued  the  writ  to  compel  a  restoration  to  a 
membership  coupled  with  no  fees  or  emoluments.6  In  fact  it 
has  been  claimed,  that  the  writ  should  issue  to  compel  the 
admission  of  a  member  into  an  incorporated  society,  where 
the  advantages  are  personal  rather  than  pecuniary,  because 
in  such  case  the  loss  is  incapable  of  a  money  compensation.7 
Besides  it  is  proper  to  issue  this  writ  in  such  cases  to  any 
corporation,  because  the  courts  have  such  supervisory  juris- 
diction over  them  to  see  that  they  act  agreeably  to  the  end 
of  their  institution  and  that  the  king's  charters  are  ob- 
served.8 

§  50.  The  writ  creates  no  new  duty. —  The  writ  of  man- 
damus never  creates  any  new  authority,  nor  does  it  confer 
a  power  which  did  not  exist  before.9  It  does  not  make 
duties,  but  lies  to  compel  a  party  to  do  what  was  his  duty 
without  the  writ.10  Where,  however,  the  officer  has  neg- 
lected to  do  his  duty  till  the  time  for  action  by  him  sua 

i  King  v.  Cambridge,  8  Mod.  148.  Erie  Co.,  24  Barb.  570 ;   People  v. 

2  Lewis  v.  Whittle,  77  Va.  415.  Med.  Soc.  of  Erie  Co.,  32  N.  Y.  187. 

3  Fuller  v.  Plainfield  Acad.  School,  1  Freon  v.  Carriage  Co.,  42  Ohio 
6  Conn.  532.  St  30. 

*Conlin  v.  Aldrich,  98  Mass.  557.  8  See  §  157. 

5  2  Black.  Com.  37.  »  State  v.  Buhler,  90  Mo.  560 ;  Peo- 

6  Medical,  etc.  Soc.  v.  Weatherly,  pie  v.  Hatch,  33  111.  9 ;  State  v.  Ne- 
75  Ala.  248 ;  State  v.  Georgia  Med.  maha  Co.,  10  Neb.  32. 

Soc,  38  Ga.  608 ;  Com.  v.  Pennsyl-  i»  Brownsville  v.  Loague,  129  U.  S. 

vania  B.  Inst,  2  S.  &  R.  141 ;  Green  769 ;  United  States  v.  Clark  County, 

v.  African  M.  E.  Soc,  1S.&R.  254;  95  U.  S.  769;  Supervisors  v.  United 

Screwmen's  B.  Assoc,  v.  Benson,  76  States,  18  Wall.  71 ;  People  v.  Gil- 

Tex.   552 ;    White    v.   Brownell,    2  mer,  10  111.  242 ;  People  v.  Chicago, 

Daly,  329 ;  People  v.  Med.  Soc.  of  etc.  R  R,  55  111.  95. 


§51.]  GENERAL   PRINCIPLES.  55 

sponte  has  expired,  the  writ  will  still  issue,  and  in  that  sense 
alone  may  be  considered  to  have  given  a  new  authority. 
Where  a  court  failed  during  a  certain  term  thereof  to  cer- 
tify a  case  to  an  appellate  court,  as  required  by  law,  a 
mandamus  was  issued  at  a  later  period  to  compel  such  cer- 
tification.1 It  is  no  objection  to  a  mandamus  to  compel  a 
judge  to  sign  a  bill  of  exceptions,  that  the  period  in  which 
it  should  have  been  signed  has  passed,  provided  the  relator 
presented  it  in  due  season,  and  the  delay  is  due  to  the 
judge.2    Officers  cannot  by  their  neglect  deprive  parties  of 

their  rights. 
§  51.  Writ  denied  when  there  are  other  remedies.— 

This  writ  is  issued  as  a  dernier  resort  and  ex  dehito  justitm? 
Only  in  case  all  other  remedies  fail  can  this  writ  be  ap- 
pealed to,  and  it  is  then  issued  to  prevent  a  failure  of  jus- 
tice.4 By  this  it  is  not  meant  that  any  other  remedy  will 
suffice,  no  matter  how  imperfect  or  inadequate  it  may  be. 
In  order  to  prevent  the  issuance  of  this  writ,  such  remedy 
must  be  a  plain,5  speedy,6  adequate7  and  specific8  legal 

i  State  v.  Philips,  96  Mo.  570.  Beavers,  6  Tex.  457 ;  Rowland,  Ex 

2  See  §  192.  parte,  104  U.  S.  604 ;  People  v.  State 

3  People  v.  Head,  25  El.  325.  Treas.,  24  Mich.  468. 

4  People  v.  New  York  (Mayor),  10  5  Evans  v.  Thomas,  32  Kans.  469 ; 
Wend.  393 ;  Milliken  v.  City  of  State  v.  New  Orleans,  eta  R.  R,  37 
Weatherford,  54  Tex.  388;  Hay-  La,  An.  589;  State  v.  Gracey,  11 
more  v.  Com'rs  of  Yadkin,  85  N.  C.  Nev.  223:  Marshall  v.  Sloan,  35 
268 ;  Prop'rs  St  Luke's  Church  v.  Iowa,  445 ;  People  v.  Hawkins,  46 
Slack,  7  Cush.  226 ;  People  v.  State  N.  Y.  9 ;  State  v.  Fremont,  etc.  R  R, 
Prison  Insp'rs,  4  Mich.  187 ;  State  v.  22  Neb.  313. 

Teasdale,  21  Fla.  652 ;  Napier  v.  Poe,  «Babcock  v.  Goodrich,  47    Cal. 

12    Ga.    170;    Arrington     v.    Van  488;  Fremont  v.  Crippen,  10  CaL 

Houton,  44  Ala,  284 ;  Fitch  v.  Mc-  211 ;  PickeU  v.  Owen,  66  Iowa,  485 ; 

Deamid,  26   Ark   482;  Runion  v.  Marshall  v.  Sloan,   35  Iowa,  445; 

Latimer,    6    S.    C.    126;    Com.    v.  State  v.  Gracey,  11  Nev.  223. 

Com'rs,  16  S.  &  R  317 ;  Arberry  v.  "  People  v.  McLane,  62  CaL  616 ; 

s  Buffalo,  etc.  R  R  v.  Allegheny  v.  Boston.  123  Mass.  460 ;  Rex  v.  Bar- 

(Com.),  120  Pa.  St  537;  Excelsior,  ker,  3  Burr.  1265;  Rex  v.  Windham, 

etc.  Ass'n  v.  Riddle,  91  Ind.  84 ;  State  Cowp.  377 ;  Legg  v.  City  of  Annap- 

v.  Fuller,  18  S.  C.  246 ;  Starnes  v.  olis,  42  Md.  203 ;   R  v.  Archbishop, 

Tanner,  73  Ga.  144;  Du  Bose,  Ex  8    East    213;    Prop'rs    St    Luke's 

parte,  54  Ala.  278 ;  Attorney-General  Church  v.  Slack,  7  Cush.  226. 


56  GENERAL   PRINCIPLES.  [§  52. 

remedy  in  the  ordinary  course  of  law.1  It  is  immaterial 
whether  such  remedy  be  provided  by  statute 2  or  furnished 
by  the  common  law.3  In  some  of  the  states  these  rules 
have  been  varied  by  statutes  which  authorize  the  issuance 
of  this  writ  in  all  cases  to  which  it  is  applicable,  regardless 
of  the  existence  of  other  remedies.4 

§  52.  Other  remedy  must  be  speedy. —  Such  other  rem- 
edy must  be  speedy.  The  canvassers  of  an  election  were 
compelled  by  mandamus  to  re-assemble  and  count  all  the 
votes.  Thev  had  thrown  out  some  votes  which  the  court 
had  decided  should  be  counted.  Though  the  law  provided 
for  a  suit  to  contest  the  election,  the  court  considered  such 
remedy  to  be  neither  speedy  nor  adequate.5  For  the  same 
reason  the  writ  was  allowed  against  a  city  on  a  claim  for 
services  rendered.6  But  this  writ  is  not  granted  because  it 
is  more  speedy  than  any  other  remedy,7  for,  in  that  case, 
it  might  always  be  applied  for.  It  is  issued  when  the  delay 
attending  any  other  remedy  would  allow  material  injury 
to  ensue.3  Where  the  law  provided  that  the  county  corn- 
George's,  etc  Co.  v.  Co.  Com'rs,  59  Williams  v.  Judge,  27  Mo.  225 ;  Peo- 
Md.  255 ;  People  v.  Board  of  Police,  pie  v.  Branch  Cir.  Ct.  (Judges),  1 
107  N.  Y.  235 ;  Mobile  &  O.  R.  R.  v.  Doug.  (Mich.)  319. 
Wisdom,  5  Heisk.  125;  Blair  v.  2  State  v.  Wickham,  65  Mo.  634; 
Marye,  80  Va.  485;  Leigh  v.  State,  Barksdale  v.  Cobb,  16  Ga.  13;  Ot- 
69  Ala.  261 ;  Virginia  Com'rs,  Ex  tawa  v.  People,  48  111.  233. 
parte,  112  U.  S.  177 ;  Ewing  v.  3  Kaine  v.  Com.,  101  Pa.  St.  490 ; 
Cohen,  63  Tex.  482 ;  State  v.  Burn-  Mackey,  Ex  parte,  15  S.  C.  322; 
side,  33  S.  C.  276 ;  Barnett  v.  Dir.  Wilkins  v.  Mitchell,  3  Salk.  229. 
Ind.  Dist.,  73  Iowa,  134 ;  Shine  v.  i  Blair  v.  Marye,  80  Va.  485  ;  O.  & 
Kentucky  C.  R.  R,  85  Ky.  177;  M.  R  R  v.  People,  121  111.  483; 
State  v.  Appleby,  25  S.  C.  100 ;  State  Gardner  v.  Haney.  86  Ind.  17 ;  Indi- 
v.  Sheboygan  Co.  (Sup'rs),  29  Wis.  anapolis  v.  McAvoy,  86  Ind.  587. 
79;  Com.  v.  Pittsburgh,  34  Pa.  St.  In  Indiana,  however,  this  writ  can- 
496 ;  Peck  v.  Booth,  42  Conn.  271 ;  not  be  resorted  to  in  the  first  in 
People  v.  Highway  Com'rs,  88  BL  stance.  Harrison  S.  T.  v.  McGregor 
141 ;  People  v.  State  Treas.,  24  Mich.  96  Ind.  185. 
468;  Q.  v.  Exeter  (Chapter),  12  A.  5  State  v.  Stearns,  11  Neb.  104. 
&  E.  512.  6  State  v.  Ames,  31  Minn.  440. 

i  Q.  v.  Registrar,  21  Q.  B.  D.  131 ;        "  Ottawa   v.  People,  48   111.    233 ; 
Com.  v.  Allegheny  Co.  (Com'rs),  16    People  v.  Salomon,  46  111.  415. 
S.  &  R  317 ;  United  States  v.  Bank        STawas,  etc.  R  R  v.  Iosco  Circuit 
of  Alexandria,  1  Cranch,  C.  C.  7 ;    Judge,  44  Mich.  479. 


§  53.]  GENERAL    PRINCIPLES.  57 

missioners  should  determine  which  of  two  townships  had 
erroneously  collected  taxes  from  the  owner  of  certain  lands, 
the  court  held  that  a  mandamus  would  lie  to  compel  them 
so  to  determine,  regardless  of  the  existence  of  any  other 
remedy,  because  it  was  apparent  that  the  statute  was  meant 
to  provide  a  cumulative,  simpler,  less  expensive  and  more 
speedy  remedy  than  existed  before.1 

§  53.  Other  remedy  must  be  adequate.—  Such  other 
remedy  must  be  adequate.  Such  remedy  is  adequate  when 
it  reaches  the  end  intended,  and  actually  compels  the  per- 
formance of  the  duty  which  has  been  neglected  or  refused.2 
It  must  apply  to  the  case,  and  afford  the  particular  right  to 
which  the  party  is  entitled.3  Anything  which  falls  short 
of  that  is  not  adequate  nor  complete.  The  indictment  of 
the  officer,4  or  an  action  on  the  case  for  damages  for  nee;- 
lect  of  duty,5  generally  does  not  accomplish  the  perform- 
ance of  the  neglected  duty,  and  is  not  an  adequate  remedy. 
The  writ  has  been  refused :  when  the  board  of  supervisors 
denied  the  relief  desired,  because  an  appeal  lay  from  their 
decision ; s  to  compel  a  corporation  to  file  their  tax  state- 
ment as  required  by  law,  because  the  auditor  of  the  county 
was  authorized  to  make  it  for  them  if  they  failed  to  do  so ; 7 
to  compel  the  clerk  of  the  police  court  to  pay  the  fees  of 
the  prosecuting  attorney,  since  he  had  a  right  of  action ; 3 
to  compel  a  town  trustee  to  transfer  a  person  for  school 

i  People  v.  Essex  County  (Board  ditor,  42  Mich.  423 ;  King  v.  Not- 

of  Sup'rs),  70  N.  Y.  228.  tinghain  O.  W.  W.,  6  A.  &  E.  355 ; 

2  Porter  Township  (Overseers)  v.  Trenton,  etc.  Co.,  In  re,  20  N.  J.  L. 
Jersey  Shore  (Overseers),  82  Pa.  St.  659 ;  State  v.  Wilmington  Bridge 
275.  Co.,  3  Harr.  312. 

3  Etheridge  v.  Hall,  7  Porter,  47 ;  5  Fremont  v.  Crippen,  10  Cal.  211 ; 
"Williamsburg  (Trustees),  In  re,  1  Babcock  v.  Goodrich,  47  Cal.  488 ; 
Barb.  34;  Fremont  v.  Crippen,  10  McCullough  v.  Brooklyn  (Mayor), 
Cal.  211 ;  Babcock  v.  Goodrich,  47  23  Wend.  458;  Mobile  &O.RE.  v. 
Cal.  488.  Wisdom,  5  Heisk.  125. 

4  Porter  Township  (Overseers)  v.  6  state  v.  Sheboygan  Co.  (Sup'rs"), 
Jersey  Shore  (Overseers),  82  Pa.  St.  29  Wis.  79. 

258 ;  State  v.  Whitworth,  76  Tenn.        ~>  Louisville,  etc.  R  R.  v.  State,  25 

594 :  People  v.  New  York  (Mayor),     Ind.  177. 

10  Wend.  393 ;  People  v.  State  Au-        3  Colley  v.  Webster,  59  Conn.  361. 


58  GENERAL   PRINCIPLES.  [§  53. 

purposes  to  another  township,  because  an  appeal  la}'  to  the 
county  examiner ; !  in  all  cases  where  appeals  are  allowed 
to  other  courts,  boards  or  officers ; 2  to  make  the  registrar 
of  joint-stock  companies  file  an  agreement  which  he  re- 
fused to  file  because  the  tax  was  not  paid,  for  the  reason 
that  the  law  provided  another  remedy ; 3  to  compel  the  ad- 
mission of  a  colored  child  to  a  public  school,  because  the 
father  could  bring  suit ; 4  to  recover  moneys  expended  or 
misapplied  by  public  officers,  because  suit  could  be  brought ; 5 
to  make  a  railroad  keep  a  street  in  repair  in  accordance 
with  its  contract,  because  suit  could  be  brought  on  its  con- 
tract ; 6  to  compel  city  authorities  to  audit  a  bill  for  services, 
since  an  action  at  law  would  lie ; 7  to  make  a  judge  sign  a 
bill  of  exceptions,  since  the  law  provided  that  by-standers 
might  do  so  upon  his  refusal ; s  to  enforce  the  contract  of  a 
county  to  pay  for  volunteers,  since  an  action  at  law  lies;9 
to  compel  a  county  treasurer  to  pay  county  warrants, 
though  he  has  the  money,  since  there  is  a  remedy  on  his 
bond,10  and  to  make  a  corporation  pay  a  dividend  it  has 
declared.11  Where,  however,  a  remedy  by  appeal,12  certio- 
rari^ or  quo  warranto™  is  not  considered  under  the  circum- 
stances to  be  a  sufficient  remedy,  the  writ  will  issue.  In 
some  cases  a  criminal  proceeding  has  been  considered  suffi- 
ciently efficacious  to  accomplish  the  result  desired,  and  ac- 
cordingly the  writs  were  refused.     A  mandamus  was  re- 

i  Fogle  v.  Gregg,  26  Ind.  345.  6  State  v.  New  Orleans,  etc.  R  R, 

2  State  v.  Platte  Co.  (County  Ct),    37  La.  An.  589. 

83  Mo.  539 ;  Chambers,  Ex  parte,  10        '  Wheelock  v.  Auditor,  130  Mass. 

Mo.  Ap.  240 ;  State  v.  Marshall,  82  486. 

Mo.  484 ;  Shine  v.  Kentucky  C.  R.        8  State  v.  Wickham,  65  Mo.  634. 

R,  85  Ky.  177 ;  Mackey,  Ex  parte,        9  State  v.  Howard  Co.,  39  Mo.  375. 

15  S.  C.  322 ;    State  v.  Baltimore       10  State  v.  Bridgman,  8  Kans.  458. 

(Co.  Com'rs),  46  Md.  621 ;  Barksdale       n  People    v.  Central,  etc.  Co.,  41 

v.  Cobb,  16  Ga.  13 ;  Boone  County  Mich.  166. 

(Board  Comr's)  v.  State,  38  Ind.  193 ;       "  Careaga  v.  Fernald,  66  CaL  351. 

Marshall  v.  Sloan,  35  Iowa,  445.  "state  v.  County  Com'rs,  83  Ala. 

3  Q.  v.  Registrar,  21  Q.  B.  D.  131.  804. 

<  Kaine  v.  Com.,  101  Pa.  St  490.  "  Lewis  v.  Whittle,  77  Va.  415. 

5  Elder    v.    Washington   Ter.,  8 
Wash.  T.  438. 


59 


o   kq  1  GENERAL   PRINCIPLES. 

fused  against  the  treasurer  of  a  county  to  make  him  pay 
the  costs  of  a  witness  in  a  felony  case,  pursuant  to  an  order 
of  the  borough  court  of  sessions,  because  an  attachment 
was  allowable  on  an  indictment  for  disobedience.*    A  man- 
damns  to  open  a  highway  was  refused  where  the  real  ob- 
iect  was  to  remove  obstructions  from  it,  since  an  indict- 
ment lay  against  the  offender,  and  upon  his  conviction  it 
was  the  duty  of  the  court  to  order  the  sheriff  to  remove 
the  obstructions.2    The  writ  was  refused  to  make  a  minis- 
terial officer  obey  the  orders  of  the  quarter  sessions,  since 
indictment  was  the  proper  remedy.'    When  the  parties 
have  a  sufficient  remedy  in  their  own  hands  the  writ  will 
be  refused      It  was  refused :  to  compel  the  land-owners  to 
amend  and  repair  certain  river  banks,  which  they  were 
liable  to  repair  rations  tormina,  since  the  relators,  the  con- 
servators of  Bedford  Level,  had  the  authority  of  commission- 
ers of  sewers;4  and  to  the  overseers  of  the  poor  to  produce 
their  accounts  to  the  auditor  appointed  by  the  poor-law  com- 
missioners, since  the  auditor  need  not  allow  their  accounts 
unless  the  particulars  are  furnished  to  him.*    It  is  no  reply 
to  the  application  for  this  writ,  that  another  proceeding  may 
attain  the  same  object.    The  relator  has  a  right  to  deal  with 
the  existing  state  of  things,  and  is  not  bound  to  abandon 
them  6    The  plain,  adequate  and  speedy  remedy  by  an  ordi- 
nary action,  which  will  defeat  the  right  to  a  mandamus, 
must  be  a  remedy  against  the  respondent  in  the ,  mandamus 
proceeding,  and  not  against  third  persons.     To  a  manda- 
mus against  a  board  of  county  canvassers  to  reconvene, 
count  the  votes  and  declare  the  proper  result,  it  is  no  de- 
fense to  answer  that  the  relator  may  have  a  quo  warranto 
against  the  person  declared  to  be  elected  •    To  a  mandamus 
to  the  auditor  to  issue  a  warrant  for  the  relator's  salary  as 

XKing  v.  Surrey  (Trea,),  1  Chit     ^  J^f «  ^^  P°°r)' 

^HaleCCom'rsHighway^v.Peo-  W^bS^  ^  ^^ 

i    <-*  tii  vm  ors),  4  B.  &  Ad.  530. 

"  =  Bng  v  Bestow,  6  T.  B.  168.  '  People  v.  Greene  Co.  (Sup'rs), 

1Q.  v.  Gamble,  11  A.  &  E.  09.  12  Barb.  217. 


60  GENERAL    PRINCIPLES.  [§  54. 

the  superintendent  of  schools,  it  is  no  defense  that  he  has 
paid  the  salary  to  another,  since  the  relator  cannot  be  com- 
pelled to  exhaust  his  remedies  against  the  other.1  "Where  a 
judgment  for  personal  injuries  sustained  was  obtained  against 
a  town  and  an  individual,  the  judgment  creditor  was  allowed 
a  mandamus  to  compel  the  town  authorities  to  levy  a  tax 
to  pay  the  judgment,  though  the  other  defendant  had  prop- 
erty subject  to  levy.  The  creditor  had  a  right  to  compel 
the  town  by  this  proceeding  to  pay  him,  and  to  refuse  to 
him  this  writ,  even  though  its  issuance  produced  a  circuity 
of  actions,  would  be  an  interference  with  his  rights.2  To 
prevent  the  issuance  of  this  writ  there  must  be  a  specific, 
adequate  and  legal  remedy,  competent  to  afford  relief  upon 
the  very  subject-matter  of  his  application.3  If,  however,  it 
is  doubtful  whether  there  is  another  adequate  remedy,  or 
the  court  cannot  clearly  see  its  way  to  one,  the  writ  will 
issue.4  The  court  is  guided  in  its  decision  by  the  nature  of 
the  right  itself,  without  regard  to  the  special  circumstances 
of  the  particular  case.5  So  if  it  is  doubtful  whether  the 
party  is  entitled  to  the  writ,  the  court  will  often  order  the 
rule  or  issue  the  alternative  writ,  and  allow  the  matter  to 
be  fully  considered  and  finally  decided  at  the  hearing.6 

§  54.  Other  remedy  must  be  specific. —  Such  other  rem- 
edy must  be  specific.  A  specific  remedy  is  one  which  will 
place  the  party  in  the  position  he  occupied  before  the  act 
complained  of,7  or  would  have  occupied  had  the  duty  been 
performed,8  or  will  afford  relief  upon  the  very  subject-mat- 
ter of  his  application.9  A  mandamus  to  compel  the  transfer 
of  stock  of  a  corporation  was  allowed,  because,  though  an 
action  for  damages  might  be  an  adequate  remedy,  yet  the 

1  "Williams  v.  Clayton  (Utah,  Mar.  5  r.  Vt  Victoria  Park  Co.,  1  Q.  B. 
8,  1889),  21  Pac.  Eep.  398.  288. 

2  Palmer  v.  Stacy,  44  Iowa,  340.  <*  Queen  v.  Heathcote,  10  Mod.  48. 

3  State  v.  "Wright,  10  Nev.  167.  7  Etheridge  v.  Hall,  7  Port.  47. 

*  Rex  v.  Nottingham  O.  W.  W.,  8  Sessions  v.  Boykin,  78  Ala.  328. 

1  N.  &  P.  480 ;   Ottawa  v.  People,  9  State  v.   Wright,  10  Nev.   167 ; 

48  Bl.  233;   Baker  v.  Johnson,  41  Raisch  v.  Board  of  Education,  81 

Me.  15 ;  State  v.  Wright,  10  Nev.  167.  Cal.  542. 


§  55.]  GENERAL   PRINCIPLES.  01 

relator  was  entitled  to  the  specific  relief  of  being  admitted 
to  the  corporation  as  a  stockholder,  and  being  allowed  to 
participate  in  its  franchises.1  It  has  been  held  that  the 
writ  will  issue,  though  there  is  a  specific  legal  remedy,  if 
that  remedy  has  become  obsolete.2  Such  ruling  may  be 
appropriate  in  England,  where  legal  practice  has  been  s}Ts- 
tematized  by  the  accretions  and  changes  of  centuries,  but 
would  hardly  be  accepted  in  America,  where  the  obsolete 
portions  of  the  English  law  were  never  adopted. 

§  55.  Other  remedy  must  be  a  legal  remedy. —  Such 
other  remedy  must  be  a  legal  remedy  in  the  ordinary  course 
of  law.3  Though  it  seems  that  in  early  times  the  writ  of  man- 
damus was  occasionally  issued  from  a  court  of  chancery, 
yet  it  is  now  held  to  be  exclusively  a  legal  remedy.4  Con- 
sequently the  existence  of  a  specific  equitable  remedy  is  not 
a  ground  for  refusing  the  writ.5  It  is  only  an  element  to 
be  taken  into  consideration  by  the  court  in  exercising  its 
discretion  as  to  whether  it  will  issue  the  writ.6  The  writ 
will  not  lie  where  there  is  a  legal  remedy  by  action.7  The 
writ  has  been  refused,  because  an  action  would  lie  against 
the  county :  to  compel  the  county  court  to  allow  a  claim 
against  the  count}?- ; 8  to  compel  the  county  supervisors  to 
allow  a  claim ; 9  and  to  make  the  board  of  police  provide  for 
the  payment  of  a  warrant.10  Where  the  law  specificially 
provided  another  remedy  the  writ  was  refused :  to  make 

1  Memphis,  etc.  Co.  v.  Pike,  9  to  private  corporations,  Freon  v. 
Heisk.  697.  Carriage  Co.,  42  Ohio  St.,  80. 


2  ! 


!3  Stephen's    Nisi  Prius,    2291;  <>Tawas,    etc.    R.    R.    v.   Circuit 

King  Williams  (Justices)  v.  Mun-  Judge,  44  Mich.  479 ;  People  v.  New 

day,  2  Leigh,  165.  York  (Mayor),  10  Wend.  393. 

3  Baker  v.  Johnson,  41  Me.  15;  t  People  v.  Chenango  Co.  (Sup'rs), 

Tar ver  v.  Tallapoosa  (Com'rs  Court),  11  N.  Y.  563;  Lynch,  Ex  parte,  2 

17  Ala.  527.  Hill,  45. 

*  Ante,  §3.  8  state  v.  Floyd    Co.  (Judge),   5 

5  People  v.    State    Treasurer,  24  Iowa,  380. 

Mich.  468 ;    Phoenix    Iron    Co.    v.  9  Crandall  v.  Amador  Co.,  20  Cal. 

Com.,  113  Pa,  St.  563;  R.  v.  Arch-  72. 

bishop,  8  East,  213 ;  R.  v.  Stafford  io  Beaman  v.  Leake  Co.  (Board  of 

(Marquis),  3  T.  R.  646.     Contra,  as  Police),  42  Miss.  237. 


02  GENERAL   PRINCIPLES.  [§  56. 

the  county  officers  move  their  offices ; l  to  compel  the  tax 
collector  to  pay  his  collections  into  the  parish  treasury ; 2 
and  to  compel  a  railroad  to  receive  and  transport  freight 
without  charging  discriminatory  rates.3  The  writ  was  re- 
fused: to  compel  an  officer  to  surrender  to  the  county 
commissioners  a  room  in  the  court-house,  which  they  had 
formerly  assigned  to  him,  because  they  had  full  control  of 
the  court-house  and  could  bring  ejectment ; 4  to  make  the 
owners  of  a  new  bridge,  which  interfered  with  the  receipts 
of  an  earlier  bridge,  pay  to  the  owners  of  the  latter  a  cer- 
tain sum  of  money  as  provided  by  law,  because  an  action 
of  debt  lay;5  to  make  the  board  of  supervisors  levy  a  tax 
to  pay  an  order  from  them  on  the  county  treasurer,  because 
suit  could  be  brought ; 6  to  make  the  county  treasurer  pay 
bonds  issued  to  a  railroad  from  money  received  by  him 
from  a  tax  levied  by  law  for  that  purpose,  because  there 
was  sufficient  remedy  on  his  bond.7  The  writ  will  issue 
though  it  determines  but  one  step  in  the  controversy,  and 
though  it  may  still  be  necessary  to  resort  to  an  injunction, 
a  quo  warranto  or  a  contest  of  an  election.8 

§  56.  Relator  must  show  a  clear  legal  right.—  The 
writ  will  not  lie  unless  the  relator  shows  a  clear  legal  right 
to  have  the  thing  done  which  he  asks  for.9  If  the  right  be 
doubtful  the  writ  will  be  refused.10    A  party  put  in  a  bid 

•  State  v.  Stockwell,  7  Kans.  98.  (Archb.),  8  East,  213 ;  State  Board 

2  State  v.  Boullt,  26  La,  An.  259.  of  Education  v.  West  Point,  50  Miss. 

3  State  v.  Mobile,  etc  K.  R,  59  638;  Morris,  Ex  parte,  11  Grat.  292; 
Ala,  321.  State    v.    Hastings,    10  Wis.   518 ; 

4  Wasboe  Co.  Com'rs  v.  Hatch,  9  Commonwealth  v.  Mitchell,  82  Pa, 
Nev.  357.  St.  343 ;    People  v.   Chenango  Co, 

5Q.  v.  Hull,  etc.  R.  R,,  6  Ad.  &  E.  (Sup'rs),  11  N.  Y.  563;   Tarver  v 

(N.  S.)  70.  Tallapoosa  (Com'rs  Ct),  17  Ala.  527 

6  People  v.  Clark  Co.  (Board  of  State  v.  Omaha  (Mayor),  14  Neb.  265 

Sup'rs),  50  111.  213.  People  v.  Police  Board,  107  N.  Y.  235 

^State  v.  McGrillus,  4  Kans.  250.  Bayard  v.  United  States,  127  U.  S 

s  State      v.      Marshall      County  246;  Leigh  v.   State,  69  Ala.   261 

(Judge),  7  Iowa,  186.  Huckabee,  Ex  parte,  71  Ala.  427 

<>  Chicago,   etc.  R.  R.  v.   Suffern,  State    v.    Appleby,  25  S.  C.    100 

129   111.   274;  Burnsville  T.    Co.  v.  Atchison  v.  Lucas,  83  Ky.  451. 

State,  1 19  Ind.  382 ;  State  v.  Bonnell,  ™  Beaman  v.  Leake  Co.  (Board  Po- 

119  Ind.  494;  King  v.  Canterbury  lice),  42  Miss.  237 ;  Townes  v.  Nichols, 


§  56.]  GENEKAL    PRINCIPLES.  63 

for  a  contract.  The  law  required  an  approval  of  his  bid  by 
the  common  council  before  the  contract  was  let.  Until  the 
contract  was  let  he  had  no  right  of  action.  The  common 
council  might  think  it  inexpedient  to  do  the  work,  or  that  the 
prices  were  too  high.  The  lowest  bidder  has  no  cause  of  ac- 
tion even  if  the  contract  is  let  to  a  higher  bidder.  His  peti- 
tion to  compel  the  letting  of  the  contract  to  him  was  refused.1 
The  writ  was  refused :  to  compel  a  sheriff  to  levy  on  property 
standing  in  the  wife's  name,  which  the  execution  creditor 
asserted  belonged  to  the  husband,  since  there  was  no  clear 
legal  right  till  the  question  of  ownership  was  determined;2 
to  compel  the  mayor  to  sign  a  warrant  drawn  by  the  comp- 
troller on  the  city  treasurer,  it  being  doubtful  who  was  en- 
titled to  the  money,  another  party  having  sued  the  city 
therefor ; 3  to  compel  the  county  treasurer  to  pay  a  claim 
allowed  by  the  board  of  supervisors,  it  being  clear  that  the 
supervisors  were  imposed  on ; 4  to  compel  a  county  treasurer 
to  pay  an  order  legally  drawn  on  funds  in  his  hands,  when 
from  extraneous  circumstances  a  well-founded  doubt  arose 
as  to  the  right  of  the  applicant  to  receive  it  and  of  the 
officer  to  pay  it ; 5  because  the  law  was  so  vague  that  the 
right  was  doubtful ; 6  because  the  relator  showed  no  interest 
whatever  in  the  matter ; 7  to  make  the  city  treasurer  accept 
$100  so  that  the  relator  might  demand  from  the  clerk  a 
license  to  sell  liquor,  because  such  a  license  is  not  a  contract, 
and  he  would  thereby  acquire  no  legal  right.8  The  writ  is 
not  granted  to  enforce  rights  not  of  a  legal  but  of  a  mere 
equitable  nature,  no  matter  how  great  the  inconvenience.9 

73  Me.  515 ;  State  v.  Burnside,  33  S.  C.  2  State  v.  Craft,  17  Fla.  722. 

276 ;  State  v.  Washington  Co.  (Board  3  People  v.  Booth,  49  Barb.  31. 

Sup'rs),  2  Chand.  247 ;  Mobile,  etc.  4  People  v.  Wendell,  71  N.  Y.  171. 

R  R.  v.  People,  132  III  559 ;  People  5  People  v.  Johnson,  100  I1L  537. 

v.   Salomon,   46  111.   415 ;    State  v.  6  State  v.  Washington  Co.  (Board 

Grubb,  85  Ind.  213;  People  v.  Davis,  Sup'rs),    2    Chand.    247;    State    v. 

93  111.  133 ;  State  v.  Buhler,  90  Mo.  Verner.  30  S.  C.  277. 

560 ;  Free  Press  Asso.  v.  Nichols,  45  7  State    v.    Davis     County    (Co. 

Vt.  7.  Judge),  2  Iowa,  280. 

'People    v.     Croton     Aqueduct  8  State  v.  Bonnell,  119  Ind.  494. 

Board,  26  Barb.  240.  9  Rugby     Charity    Trustees,    Ex 


Ci  GENERAL    PRINCIPLES.  [§  57. 

A  transferee  of  stock  merely  by  delivery  was  refused  this 
writ  to  compel  a  transfer  of  the  stock  by  the  corporation 
on  its  books,  because  he  was  merely  an  equitable  assignee.1 
The  title  must  be  complete.  The  writ  does  not  lie  if  the 
title  is  inchoate,2  even  though  growing  out  of  statutory 
duty,3  nor  if  the  legal  right  has  not  been  ascertained ;  *  it 
does  not  lie  to  establish  a  right,  but  is  used  to  enforce  a 
right  after  its  establishment.5  A  person  asked  for  a  man- 
damus to  compel  a  member  of  a  board  and  its  clerk  to 
recognize  him  as  a  member  of  the  same  board,  though  an- 
other party  had  been  commissioned  and  was  acting  as  such 
member,  and  though  in  a  quo  warranto  proceeding  brought 
by  such  other  party  he  was  perpetually  enjoined  from 
claiming  the  office.  The  quo  warranto  case  was  then  pend- 
ing on  appeal.  The  court  considered  that  the  relator's 
claim  was  not  clear  and  refused  the  writ.6 

§  57.  Obligation  ou  respondent  to  do  the  act  must  foe 
absolute. —  This  writ  will  not  lie  unless  the  act  desired  is 
of  absolute  obligation  on  the  part  of  the  person  sought  to 
be  coerced.7  The  relator  must  show  not  only  a  clear  legal 
right  to  have  the  thing  done,  but  also  by  the  person  sought 
to  be  coerced,8  in  the  manner  sought,9  and  that  he  still  has 

parte,  9  D.  &  E.  214;  King  v.  Can-  ^Swartz  v.  Lange  (Kans.,  Nov.  7, 

terbuiy  (Archb.),  8  East,  213 ;  Lords  1891),  27  Pac.  Rep.  992. 

Kenyon  and  Buller  in  R  v.  Abra-  7  R.  v.  Fowey  (Mayor),  2  B.  &  C. 

hams,  4  Q.  B.  157 ;  King  v.  Stafford,  584 ;  Morton  v.  Coinpt.  Gen.,  4  Rich. 

3  T.  R  646;   Heffner  v.  Common-  (N.  S.)  430 ;  Runion  v.  Latimer,  6  S.  C. 

wealth,  28  Pa.  St.  108.  126 ;  Chicago,  etc.  R  R.  v.  Suffern, 

iBurnsville  T.   Co.  v.  State,  119  129  Bl.  274 

Ind.  382.  8  State  v.  St.  Louis,  etc.  Co.,  21  Mo. 

2  Harris,  Ex  parte,  52  Ala.  87;  Ap.  526:  State  v.  Omaha  (Mayor),  14 
Chance  v.  Temple,  1  Iowa,  179;  Neb.  265;  People  v.  Klokke,  92  Bl. 
People  v.  Brooklyn  (City),  1  Wend.  134;  Highways  (Com'rs)  v.  People, 
318.  99  Bl.   587;  State    v.    Jacobus,    2 

3  Heffner  v.   Commonwealth,  28  Dutch.  135. 

Pa.  St  108.  9  People  v.  Spruance,  8  Colo.  307 ; 

4  Porter  Township  (Overseers)  v.  Daniels  v.  Miller,  8  Colo.  542;  As- 
Jersey  Shore  (Overseers),  82  Pa.  St.  pen  (Mayor)  v.  Aspen,  etc.  Co.,  10 
275.  Colo.    191 ;     Highways    Com'rs    v. 

5  Hays,  Ex  parte,  26  Ark.  510.  People,  66  111.  339. 


§  57.]  GENERAL    PRINCIPLES. 


65 


it  in  his  power  to  perform  the  duty  required.1     The  action 
sought  must  not  only  be  in  the  respondent's  power  to  do, 
but  it  must  be  his  duty  to  do  it.2      The  act  must  be  clearly 
prescribed  and  enjoined  by  law.3     The  duty  must  be  plain 4 
and  positive.5     Where  the  law  only  required  a  county  audi- 
tor to  draw  his  warrant  for  claims  audited  by  himself,  a 
mandamus  was  refused  to  make  him  issue  his  warrant  on 
the  county  treasurer  for  a  claim  audited  and  allowed  by  the 
board  of  supervisors."     A  duty,  which  involved  a  decision 
that  a  law  was  unconstitutional,  was  not  considered  to  be 
plain.7  A  mandamus  against  the  commissioners  of  highways 
to  lay  out  a  road   was  refused,  because  a  certiorari  in  the 
proceedings  relative  thereto  had  been  taken,  which  stayed 
all  action,  and  it  could  not  be  considered  to  be  a  clear  duty 
on  the  part  of  the  commissioners  to  lay  out  the  road.8  The 
clerk  of  a  board  of  supervisors  was  compelled  to  put  the 
county  seal  on  a   warrant  issued  by  his  predecessor,  who 
had  neglected  to  do  it,  such  duty  being  considered  to  be 
imperative.9     A  city  clerk  will  not  be  required  to  perform 
acts  demanded  of  him  by  the  board  of  trustees,  when  such 
duties  are  not  prescribed  for  him  in  the  city  charter,  nor  in 
the  ordinances  passed  thereunder.10    A  police  commissioner, 
who  at  the  request  of  the  other  commissioners  kept  memo- 
randa of  their  nominations  and  agreed  to  notify  the  common 
council  thereof,  could  not  be  required  to  correct  such  memo- 
randa, since  he  was  merely  rendering  a  service  and  was  not 
required  to  keep  the  memoranda.11     When  there  is  a  sub- 

i  People  v.  Hayt,  66  N.  Y.  606.  Cutting,  Ex  parte,  94  U.  S.  14 ;  Mad- 

2  Aspen  (Mayor)  v.  Aspen,  etc.  Co.,  dox  v.  Neal,  45  Ark.  121. 

10  Colo.    191 ;    State  v.   Zanesville,  6  Draper  v.  Noteware,  7  Cal.  276. 

etc.  Co.,  16  Ohio  St.  308 ;  Arberry  v.  7  Lynch,  Ex  parte,  16  S.  C.  32 ; 

Beavers,  6  Tex.  457.  State  v.  Hagood,  30  S.  C.  519. 

3Puckett  v.White,  22  Tex.  559;  8  Highway  Com'rs  v.  People,   99 

Q.  v.  Radnorshire  (J.),  15  L.  J.  (N.  S.)  HI.  587% 

151,  M.   C. ;    Mobile,   etc.   R.   R.  v.  9  Prescott  v.  Gonser,  34  Iowa,  175. 

Wisdom,  5  Heisk.  125 ;  Winters  v.  10  Napa  (City)  v.  Rainey,  59  Cal. 

Busford,  6  Cold.  328.  275. 

4  Draper  v.  Noteware,  7  Cal.  276.  »  Pond  v.  Parrott,  42  Conn.  13. 

5  State  v.  Appleby,  25  S.  C.  100 ; 

5 


66  GENERAL    PRINCIPLES.  [§  58. 

stantial  doubt  as  to  the  officer's  duty,  the  writ  will  be  re- 
fused.1 Such  doubt  means  a  doubt  on  the  part  of  the  court 
after  an  examination  of  the  law.  The  doubt,  no  matter 
how  strong  or  honest,  which  the  party  may  have  as  to  his 
duty  in  the  premises,  has  nothing  to  do  with  the  question.2 
It  was  held  in  one  instance,  that  the  writ  would  not  be  re- 
fused where  there  was  a  doubt  as  to  the  duty,  arising  from 
the  construction  or  the  effect  and  meaning  of  a  judicial  or- 
der.3 In  another  case,  where  a  judgment  was  ambiguous, 
having  two  constructions,  a  mandamus  to  make  the  clerk 
of  the  court  issue  an  execution  thereon  was  refused.4  A 
magistrate  was  not  required  to  issue  a  warrant  and  commit 
a  party  to  prison  for  not  paying  a  fine,  it  being  doubtful 
whether  he  was  required  to  do  so,  the  law  saying  "  it  shall 
be  lawful "  for  him  to  do  so.5  A  mandamus  to  make  a 
city  treasurer  accept  $100  from  the  relator,  so  that  he 
might  demand  from  the  city  clerk  a  license  to  sell  liquor, 
was  refused,  because  his  old  license  had  not  expired,  and 
the  clerk  was  not  bound  to  issue  a  license  before  the  time.6 
A  writ  to  compel  the  admission  of  a  person  to  the  freedom 
of  a  corporation  was  refused,  because  the  by-law  on  that 
subject  was  not  imperative.7  A  mandamus  was  refused  to 
compel  a  mayor  of  a  town  to  issue  a  distress  warrant  on  a 
conviction  rendered  by  him,  because  the  conviction,  and 
alleged  law  governing  the  case,  were  open  to  grave  objec- 
tions, which  the  court  did  not  consider  it  was  called  on  to 
decide  in  such  a  proceeding.8 

§  58.  Mandamus  not  lie  if  act  only  to  be  done  on  ap- 
proval of  another. —  Where  the  act  is  only  to  be  done  in 
case  another  party  approves  thereof,  a  mandamus  to  com- 

1  People  v.  Johnson  100  111.  537 ;        3  Larkin  v.  Harris,  36  Iowa,  93. 
State  v.  Grubb,  S5  Ind.  213;  State        4  Hall  v.  Stewart,  23  Kans.  396. 
v.   Buhler,  90  Mo.  560 ;  Greener  v.        5  Rex  v.  Broderip,  5  B.  &  C.  239. 
Moore,  6  Colo.  526  ;  Arberry  v.  Bea-        6  State  v.  Bonnell,  119  Ind.  494. 
vers,  6  Tex.  457 ;    Com.  v.  County        '  Rex  v.  Eye  (Bailiffs),  1  B.  &   C. 
Com'rs,    5    Rawle,    45 ;     Highway  85. 

Com'rs  v.  People,  99  111.  587.  8  Regina  v.  Ray,  44  Up.  Can.  Q.  B. 

2  State  v.  Auditor,  43  Ohio  St.  311.     17. 


§§  59,  GO.]  GENERAL    PRINCIPLES.  67 

pel  such  action  will  not  lie.  "Where  it  was  the  duty  of  a 
vestry  to  construct  certain  sewers,  the  plans  whereof  were 
first  to  be  approved  by  the  metropolitan  board  of  works,  a 
mandamus  to  compel  the  construction  of  the  sewers  was 
refused,  though  it  was  stated  that  a  mandamus  might  lie 
to  compel  the  vestry  to  go  before  the  board  with  its  plans 
and  to  procure  its  approval  thereof.1 

§  59.  There  must  be  an  officer  to  do  the  act  desired. — 
Before  the  writ  will  issue  there  must  be  an  officer  in  being 
with  power  and  duty  to  do  the  act.  The  writ  will  not  run 
to  a  person  who  was  elected  to  an  office  but  refused  to 
qualify.     He  cannot  be  treated  as  a  de  facto  officer.2 

§  60.  Corollaries  from  preceding  sections. —  From  the 
rules  stated  in  the  preceding  sections  certain  propositions 
may  be  deduced  which  may  be  considered  to  be  corollaries 
thereof.  A  court  cannot  order  an  officer  to  do  an  act 
which,  without  the  order  of  the  court,  would  not  be  his 
legal  duty,3  or  which  he  could  not  lawfully  do,4  an  act  be- 
yond the  duties  enjoined  upon  him  by  law  as  pertaining  to 
his  office  or  position,5  an  act  not  authorized  by  law,6  an  act 
which  is  illegal,7  or  an  act  which  was  legal  but  has  become 
illegal  prior  to  the  time  for  issuing  the  writ.8  Since  the 
writ  only  issues  to  enforce  the  law  as  it  stands,  it  will  not 
be  used  to  enforce  a  casus  omissus  in  the  law.9  An  officer 
will  not  be  compelled  to  issue  a  license  to  sell  liquors, 

i  Q.  v.  St.  Luke's  Vestry,  31  L.  J.  People  v.  Crotty,  93  111.  180 ;  Q.  v. 

Q.  B.  50.  Ambergate,  etc.  R.  R,  1  El.  &  BL 

2  State  v.  Beloit  (Sup'rs),  21  Wis.  372 ;  Ross  v.  Lane..  3  Sm.  &  M.  695 ; 
280.  Menard  v.  Shaw.  5  Tex.  334 ;  People 

3  Greener  v.  Moore,  6  Colo.  658.  v.  Fowler,  55  N.  Y.  252  ;  Gillespie  v. 

4  State  v.  Orphans'  Court  (Judge),  "Wood,  1  Humph.  437 ;  Puckett  v. 
15  Ala.  740;  Johnson  v.  Lucas,  11  White,  22  Tex.  559. 

Humph.  306.  8  People  v.   Hyde  Park,   117  111. 

5  Davis  v.  Porter,  66  Cal.  658.  462. 

6  Chicot  Co.  v.  Kruse,  47  Ark.  80 ;  M  Draper  v.  Noteware,  7  Cal.  276 ; 
Clay  Co.  v.  McAleer,  115  U.  S.  616;  Q.  v.  Arnaud,  16  L.  J.  (N.  S.)  50, 
Supervisors  v.  United  States,  18  Q.  B. ;  Q.  v.  Radnorshire  (J),  15  L  J. 
Wall.  71.  (N.  S.)  151,  M.  C, ;  3  Stephen's  Nisi 

7  Clapper,  Ex  parte,  3  Hill,  458 ;  Prius,  2291. 


68  GENERAL   PRINCIPLES.  [§  61. 

though  at  the  time  of  the  application  for  a  license  it  was 
his  duty  to  issue  it,  if  by  a  change  in  the  law  prior  to  the 
issuance  of  a  mandamus  it  has  become  a  criminal  offense  to 
sell  liquors.1  Nor  will  a  federal  court  compel  state  officers 
to  levy  a  tax,  when  they  are  not  authorized  by  state  law  to 
do  so,2  nor  when  they  have  already  exhausted  the  power 
given  them  in  that  respect.3  Commissioners  of  highways 
will  not  be  compelled  to  open  a  highway  which  their  pred- 
ecessors laid  out  without  authority,  since  they  would  be 
committing  a  trespass.4  A  county  auditor  was  not  com- 
pelled to  place  on  his  duplicate  certain  taxes  levied  by  a 
citv,  because  those  taxes  exceeded  the  rate  allowed  bv  law.5 
Tax  assessors  were  required  by  law  to  attach  a  certain  oath 
to  their  assessment  rolls.  They  stated  in  their  return  to  an 
alternative  writ  of  mandamus  that  they  could  not  truth- 
fully make  the  oath  required.  The  court  refused  to  require 
them  to  do  so,  asserting  that  it  would  not  force  them  to 
commit  a  crime.6  A  public  body  will  not  be  required  to 
violate  a  penal  statute.7  Nor  will  the  writ  be  used  to  aid 
the  enforcement  of  an  illegal  claim.8 

§61.  Mandamus  is  entirely  a  civil  remedy. —  Though 
this  writ  partakes  somewhat  of  a  criminal  nature,  yet  it  is 
held  by  all  the  courts  to  be  a  civil  remedy  having  all  the 
qualities  and  attributes  of  a  civil  action.3  In  applying  their 
practice  acts  to  this  writ  some  of  the  courts  designate  it  as 
a  civil  action  or  an  ordinary  action  at  law,10  and  other  courts, 
exempting  it  from  such  acts,  have  considered  it  to  be  a 
special  proceeding  or  proceeding  of  a  special  character,  or 

i  Hall  v.  Steele,  82  Ala  562.  ?  State  v-  Bergen  (Freeholders),  52 

2  United  States  v.  New  Orleans,  2  N.  J.  L.  31?. 

Wood,    C.    C.    230;    Clay    Co.    v.  SBoardEduca.  v.  Detroit  (City),  80 

McAleer,  115  U.  S.  616.  Mich.  548. 

s  Supervisors  v.  United  States,  18  SMcBane  v.  People,   50  111.  503; 

Wall.  71.  Brower  v.  O'Brien,  2  Ind.  423 ;  Judd 

4  Clapper,  Ex  parte,  3  Hill,  458.  v.  Driver,  1  Kans.  455. 

5  State  v.  Humphreys.  25  Ohio  St  io  Dement  v.  Eokker,  126  111.  174; 
520.  Dove  v.  Ind.  Sch.  District,  41  Iowa, 

6  People  v.  Fowler,  55  N.  Y.  252.  689. 


§  61.]  GENERAL   PRINCIPLES.  69 

a  supplementary  remedy.1  It  is  applied  solely  to  the  pro- 
tection of  civil  rights,2  but  this  includes  an  interference 
in  criminal  proceedings,  when  necessary  to  protect  such 
rights.  It  has  been  granted  to  make  the  justices  hear  a 
criminal  case,3  to  compel  the  issuance  of  a  summons  in  a 
criminal  case,4  to  make  an  officer,  before  whom  a  person 
committed  by  a  justice  of  the  peace  to  await  indictment 
was  brought  on  habeas  corpus,  hear  and  pass  on  the  evidence 
touching  the  prisoner's  guilt,5  and  to  make  a  judge  enter 
judgment  on  the  verdict  of  the  jury  and  pass  sentence 
accordingly,6  to  make  a  magistrate  enforce  a  conviction,7 
and  to  compel  a  court  to  proceed  and  try  a  criminal  case, 
wherein  it  has  erroneously  decided  that  it  has  no  jurisdic- 
tion and  has  refused  to  proceed,8  or  tliat  it. has  no  authority 
to  proceed  further  in  the  cause.9  Unless  protection  is  sought 
for  property  or  against  the  infringement  of  personal  rights, 
the  writ  will  not  issue.  Political  rights  are  not  protected 
by  the  courts.10 

i  State  v.  Lewis,  76  Mo.  370 ;  Gil-  Q.  v.  Mainwaring,  Ellis,  B.    &  E. 

man  v.  Bassett,  33  Conn.  298 ;  Ken-  474 :  Reg.  v.  Bristol  (J.),  28  Eng.  L. 

tucky  v.  Dennison,   65  U.   S.   66 ;  &  E.  160. 

Williamsport  (City)  v.  Com.,  90  Pa.  4  Q.  v.  Adamson,  1  Q.  B.  D.  201. 

St.  498 ;  State  v.  Chicago,  etc.  R  R,  5  Mahone,  Ex  parte,  30  Ala.  49. 

19  Neb.  476 ;  Burnsville  T.  Co.  v.  6  State  v.  Snyder,  98  Mo.  555. 

State,  119  Ind.  382;  Leigh  v.  State,  'King  v.  Robinson,  2  Smith,  274. 

69  Ala.  261 ;  Rosenbaum  v.  Sup'rs,  8  State  v.  Laughlin,  75  Mo.  358 ; 

28  Fed.  R.  223 ;  Chumasero  v.  Potts,  Q.  v.  Brown,  7  Ellis  &  B.  757. 

2  Mont.  242.  9  Turner,  In  re,  5  Ohio,  542. 

2  State  v.  Gracey,  11  Nev.  223.  u>  Georgia  v.  Stanton,  6  Wall.  50. 

3Q.  v.  Brown,  7  Ellis  &  B.  737; 


CHAPTEK  6. 

DISCRETION  OF  COURT  IN  ISSUING  THE  WRIT. 

§  62.  Nature  of  the  discretion  of  the  court 

63.  Illustrations  of  exercise  of  discretion. 

64.  Limitations  as  to  the  use  of  the  writ  from  its  nature. 

65.  Subject  continued. 

66.  The  court  will  try  to  make  the  writ  the  means  of  obtaining  sub- 

stantial justice. 

67.  The  writ  will  be  granted  only  in  cases  of  necessity. 

68.  Relator  must  show  good  motives  and  correct  actions 

69.  Mandamus  will  be  refused  to  direct  an  officer's  general  course  of 

conduct. 

70.  Writ  refused  when  delay  in  acting  not  unreasonable. 

71.  Writ  will  be  refused  when  it  will  work  injustice. 

72.  Writ  will  be  refused  when  justice  will  not  be  subserved  thereby. 

73.  Writ  will  be  refused  when  it  will  operate  harshly. 

74.  The  writ  will  not  be  issued  unless  it  can  effect  substantial  jus- 

tice. 

75.  The  writ  will  not  issue  when  it  will  be  unavailing. 

76.  Subject  continued. 

77.  If  the  relator's  rights  expire  before  the  hearing,  the  writ  will  be 

refused. 

78.  Writ  will  be  denied  if  respondent  has  gone  out  of  office  or  the  act 

ceases  to  be  his  duty. 

79.  Mandamus  to  compel  an  action  after  the  time  limited  for  its  per- 

formance. 

80.  Instances  of  issuing  the  writ  after  the  time  to  perform  tiie  act  had 

expired. 

81.  The  court  will  protect  the  respondent's  rights. 

82.  Parties  will  not  be  harassed  by  suits. 

83.  Discretion  used  in  protecting  the  rights  of  third  parties. 

84.  The  writ  will  not  issue  when  another  tribunal  can  require  the  act 

to  be  done. 

85.  The  last  rule  not  strictly  observed. 

86.  A  mandamus  not  issued  to  command  A.  to  command  B. 

87.  Laches  will  bar  relief  by  mandamus. 

88.  Discretion  of  court  when  the  state  is  relator. 


62.J 


DISCRETION    OF    COURT.  71 


§  62.  Nature  of  the  discretion  of  the  court.— This  writ 
was  originally,  and  still  remains  in  England,  a  prerogative 
writ,  and  was  issued  at  the  discretion  of  the  court.1     In 
America,  at  the  present  time,  it  is  but  seldom  considered  to 
he  a  prerogative  writ,2     Owing  to  the  nature  of  our  gov- 
ernment or  statutory  provisions  on  the  subject,  it  is  gener- 
ally considered  as  more  of  a  writ  of  right,3  to  be  issued  in 
cases  to  which  it  applies,4  and  is  considered  to  be  an  ordi- 
nary action  at  law,5  and  prosecuted  in  all  respects  as  an  or- 
dinary action.5     But,  whether  it  be  called  a   prerogative 
writ,  a  writ  of  right,  or  an  ordinary  action  at  law,  the  au- 
thorities agree  that  the  courts  have  a  discretion  whether 
they  will  issue  or  refuse  the  writ,7  even  where  a  prima  facie 
right  thereto  is  shown.8   Though  there  be  no  other  remedy, 
the  court  will  still  exercise  its  discretion  on  the  subject.9 
Such  discretion  must  be  a  sound  discretion,10  guided  bylaw. 
It  must  be  governed  by  rule,11  not  by  humor.     It  must  not 
be  arbitrary,12  vague  and  fanciful,  but  legal  and  regular.13 
"Where  a  party  is  entitled  to  a  right,  as  to  have  a  bill  of  ex- 

i  Leigh  v.    State,    69    Ala.   261;  •  Dist.  Twp.  v.  Ind.  Dist.,  72  Iowa. 

Bank  of  State  v.  Harrison,  66  Ga.  687. 

696;  Rex  v.  Barker,  3  Burr.  1265;  'People    v.  Weber,  86    111.   283; 

R  v.  Clear,  4  B.  &  C.  901 ;  Kendall  Daly    v.    Dimock,    do    Conn.   579; 


v, 


United  States.  12  Pet.  524.  Evans    v.   Thomas,   32    Kan.   469; 

2  People  v.  Board  Metrop.  Police,  Belcher  v.  Treat,  61  Me.  577 ;  State 

26  N.  Y.  316.  v.  Buchanan,  21  W.  Va.  362  ;  Davis 

*  3Churaaserov.Potts.2Mont.242;  v.  York  Co.  (Com'rs),  63  Me.  396; 

State  v.  Com'rs  Jefferson  Co.,  11  State  v.   Phillips  Co.   (Com'rs),   26 

Kan.  66.  Kan.  419. 

*Haymore   v.   Yadkin  (Com'rs),  STennant  v.   Crocker,   85   Mich. 

85  N.  C.  268;  Hartmanv.Greenhow,  328. 

102  U.  S.  672.  9  People  v.  Dowling,  55  Barb.  197. 

s  People  v.  Weber,   86    111.   283 ;  w  State  v.  Anderson  Co.  (Com'rs), 

State  v.  Burnsville  T.  Co..  97  Ind.  28  Kan.   67;  Alger  v.  Seaver,  138 

416;    State  v.  Lewis.  76  Mo.  370;  Mass.  331;  King  William  Just   v. 

State  v.   Lancaster.   13    Neb.  223;  Munday,  2  Leigh,  165. 

State  v.  Chicago,  etc.  R  R,  19  Neb.  »  People  v.  Chapin,  104  N.  Y.  96. 

476  •  Kentucky  v.  Denison,  65  U.  S.  12  Fitch  v.  McDiarmid,  26  Ark.  482  ; 

66  ;  Gilman  v.  Bassett,  33  Conn.  298 ;  Prop  rs  St.  Luke's  Church  v.  Slack, 

Williamsport  (City)  v.  Com.,  90  Pa  7  Cush.  226. 

st  49^  U  Mackey,  Ex  parte,  15  S.  C.  322. 


72  DISCRETION    OF   COURT.  [§  63. 

ceptions  signed,  though  it  is  said  to  be  in  the  discretion  of 
the  court  as  to  whether  it  shall  be  ordered,  still,  being  a 
right,  it  cannot  be  considered  as  discretionary  on  the  part 
of  the  court.1  It  has  been  said  that  it  is  perhaps  impossi- 
ble to  lay  down  in  advance  a  precise  and  inflexible  rule  to 
govern  the  discretion  of  the  court.2  Owing  to  the  different 
theories  held  in  England  and  America  on  the  subject  of 
this  writ,  the  English  courts,  as  should  be  expected,  allow 
their  discretion  greater  scope  in  issuing  or  refusing  the  writ 
than  do  the  American  courts,  which  are  more  inclined  to 
consider  its  issue  to  be  a  matter  of  right,  governed  by  well- 
established  rules. 

§  63.  Illustrations  of  exercise  of  discretion.— In  exer- 
cising such  discretion  the  court  will  consider  all  the  circum- 
stances, reviewing  the  whole  case  with  due  regard  to  the 
consequences  of  its  action.3  It  will  consider  the  exigency, 
the  nature  and  extent  of  the  wrong  or  injury,  which  will 
follow  a  refusal,  etc.4  The  writ  was  refused  :  where  its  issu- 
ance would  long  continue  confusion  in  the  city,  which  a  little 
good  advica  might  soon  put  an  end  to ; '  to  make  county 
commissioners  pay  the  damages  awarded  a  party  upon  con- 
demnation of  his  property,  when  they  showed  they  had  no 
money  except  what  was  required  for  the  pressing  necessi- 
ties of  the  county ; fi  to  make  a  judge  ad  hoc  try  a  cause, 
when  the  validity  of  his  appointment  was  being  contested 
on  an  appeal ; 7  against  the  mayor  of  a  city  to  appoint  a 
chief  of  police,  there  being  no  other  claimant  to  that 
office  save  the  incumbent,  against  whom  an  information 
was  pending  to  try  his  title  thereto;8  to  make  a  city 
marshal  station  a  police  officer  at  a  certain  place,  as  ordered 

i  Etheridge  v.  Hall,  7  Port.  47.  4  Tennant  v.  Crocker,  85  Mich.  328. 

2  American,   etc.    Co.   v.   Haven,  5  Queen  v.  Heathcote,  10  Mod.  48. 
101  Mass.  398.  6  Com-    v-  Philadelphia  (Com'rs), 

3  Alger  v.  Seaver,  138  Mass.  331 ;  1  Whart.  1. 

People  v.  Ketchum,  72  111.  212 ;  Peo-  '  State  v.  Earhart,  35  La.  An.  603. 

pie  v.  East  Saginaw  (Com.  Council),  8  Att'y-General  v.  New  Bedford 

33  Mich.    164;   People  v.   Genesee  (Mayor),  128  Mass.  312. 
Cir.  Judge,  37  Mich.  281. 


§  G4.]  DISCRETION    OF    COUET.  73 

by  the  board  of  aldermen ; l  when  it  called  for  a  decision 
as  to  the  number  of  officers  to  be  elected,  necessitating 
the  determination  of  the  constitutionality  of  a  statute, 
when  the  petition  was  presented  only  five  days  before 
the  election  and  was  practically  submitted  without  argu- 
ment, whereas  the  matter  required  a  full  consideration  with 
opportunity  for  all  in  interest  to  be  heard.2 

§  64.  Limitations  as  to  the  use  of  the  writ  from  its 
nature. —  This  writ  is  described  as  "  the  right  arm  of  the 
law."  Its  principal  office  is  not  to  inquire  and  investigate, 
but  to  command  and  execute.  It  is  not  designed  to  assume 
a  part  in  ordinary  lawsuits  or  equitable  proceedings.  It  has 
been  said  that  it  is  properly  called  into  requisition  in  cases 
where  the  law  has  been  settled,  or  in  cases  where  questions 
of  law  or  equity  cannot  properly  and  reasonably  arise,  and 
that  its  very  nature  implies  that  the  law,  although  plain 
and  clear,  fails  to  be  enforced,  and  needs  assistance.3  Other 
courts  give  it  a  much  more  extended  scope.  Where  a  trial 
by  jury  is  allowed,  it  would  seem  proper  to  extend  it  to 
any  case  which  falls  within  the  general  principles  govern- 
ing its  application.  It  has  been  allowed  where  the  taking 
of  a  long  account  was  necessary,4  yet  it  has  been  held,  that 
the  question,  whether  certain  land  is  a  public  highway  or 
not,  will  not  be  determined  in  a  mandamus  proceeding.5 
So  it  has  been  considered  that,  when  the  title  to  real  estate 
is  directly  in  issue,  a  mandamus  is  not  proper  to  determine 
the  question ;  yet,  when  such  question  is  only  incidentally 
involved,  and  may  affect  the  discretion  of  the  court  in 
awarding  or  denying  the  writ,  it  is  proper  that  the  court 
should  be  satisfied  on  the  subject.6  The  federal  courts  con- 
fine the  writ  within  a  very  narrow  scope,7  but  other  courts 

i  Alger  v.  Seaver,  138  Mass.  331.  5  Tennant  v.   Crocker,   85  Mich. 

2  State  v.  Com'rs  of  Douglas  Co.,     328. 

18  Neb.  506.  6Eby  v.  School  Trustees,  87  Cal. 

3  Townes  v.  Nichols,  73  Me.  515.  166. 

4  Haiues  v.  Saginaw  Co.,  87  Mich.,  ?  See  §  31. 
237. 


74  DISCRETION    OF   COURT.  [§  05. 

seldom  place  any  restrictions  when  the  case  falls  within  the 
general  principles  governing  the  issuance  of  the  writ. 

§  65.  Subject  continued. —  Some  courts  in  such  proceed- 
ings refuse  to  pass  on  the  constitutionality  of  a  law  on  the 
ground  that  the  rights  of  third  parties,  who  cannot  be 
heard  in  such  proceedings,  are  involved,  or  that  the  question 
should  be  adjudicated  in  a  more  solemn  manner,  upon  a 
full  hearing,  when  properly  presented  by  parties  in  an 
action.1  The  reasons  given  do  not  seem  to  justify  such  re- 
fusal. The  questions  of  law  can  be  as  thoroughly  pre- 
sented and  argued  in  such  a  proceeding  as  in  any  other 
legal  proceeding.  The  decision  reached  in  a  lawsuit  often 
decides  the  rights  of  other  parties,  who  are  similarly  situ- 
ated but  are  not  before  the  court.  Accordingly  we  find 
many  cases  where  in  mandamus  proceedings  the  courts  have 
not  hesitated  to  pass  on  the  constitutionality  of  a  law,  in 
some  cases  sustaining  and  in  other  cases  overthrowing  the 
law.2  But  the  courts  will  not  consider  the  constitutionality 
of  a  law  in  a  mandamus  proceeding  at  the  instance  of  a 
ministerial  officer.  If  he  should  be  allowed  to  question  the 
law  of  the  land,  the  operations  of  the  government  would 

i  People  v.  Stevens,   2   Abb.   Pr.  Jumel,  31  La.  An.  142 ;  Tennessee, 

(N.  S.)  348;  Smyth  v.  Titcomb,  31  etc.  R.  R.  v.  Moore,  36  Ala.  371; 

Me.  272 ;  Davis  v.  Superior  Court,  Galveston,   etc.  R.  R.  v.  Gross,  47 

63  Cal.  581 ;  Maxwell  v.  Burton,  2  Tex.  428 ;    Public  School  (Com'rs) 

Utah,  595 ;  State  v.  Hagood,  30  S.  C.  v.  Allegany  Co.  (Com'rs),  20    Md. 

519.  449;    State  v.  Stout,   61  Ind.    143; 

2  State  v.  Steen,  43  N.  J.  L.  542 ;  State  v.  Compt.  Gen.,  4  Rich.  (N.  S.) 

Humboldt    Co.     v.    Churchill    Co.  185  ;  Morton  v.  Compt.  Gen.,  4  Rich. 

(Com'rs),   6    Nev.    30;    Fowler    v.  (N.  S.)  430:  Ex  parte  Lynch,  16  S. 

Pierce,   2  Cal.    165 ;    McCauley  v.  C.  32 ;  People  v.  Judge  12th  Dist., 

Brooks,  16  Cal.  11;  State  v.  Barker,  17  Cal.  547;  State  v.  Fairfield  Co. 

4  Kans.  379 ;  State  v.  Meadows,  1  (Com.  Pleas  Court),  15  Ohio  St.  377 ; 

Kans.   90 ;  State    v.   McKinney,    5  Russell  v.  Elliott,  2  Cal.  245 ;  State 


Nev.  194 ;  State  v.  Lean,  9  Wis.  279 
State  v.  Whitworth,  8  Lea,  594 
State  v.  Tappan,  29  Wis.  664 
McConihe  v.  State,  17  Fla.  238 
State  v.  Mitchell,  31  Ohio  St  592 


v.  Harris,  17  Ohio  St.  608 ;  Madison, 
Co.  v.  People,  58  111.  456 ;  Cincinnati, 
etc.  R.  R.  v.  Com'rs  Clinton  Co., 
1  Ohio  St.  77 ;  People  v.  Batchellor, 
53  N.  Y.   128 ;  State   v.   Perry  Co. 


Swan  v.  Buck,  40  Miss.  268 ;  State    (Com'rs),  5  Ohio  St.  497 ;  State  v. 
v.  Bordelon,  6  La.  An.  68;  State  v.    Baltimore  Co.  (Com'rs),  29  Md.  516. 


§  GO.]  DISCRETION   OF   COURT.  75 

be  thwarted  and  great  confusion  would  result.  If  the  law 
is  void,  the  parties  affected  thereby  can  appeal  to  the  courts 
for  their  protection.1  A  mandamus  will  not  be  issued  to 
compel  the  granting  of  a  license  under  a  law  for  a  reason 
which,  if  valid,  shows  the  law  itself  to  be  unconstitutional.2 
§  66.  The  court  will  try  to  make  the  writ  the  means 
of  procuring  substantial  justice. —  As  the  guardian  of 
public  rights  and  in  the  exercise  of  its  authority  to  issue 
this  writ,  the  court  will  render  it,  so  far  as  it  can,  the  means 
of  substantial  justice,  in  every  case,  where  there  is  no  other 
specific  legal  remedy  for  a  legal  right.3  It  is  no  objection 
to  the  issuance  of  this  writ,  that  it  will  produce  a  circuity 
of  action,  if  the  party  has  a  right  to  the  writ.  Where 
a  party  obtained  a  judgment  for  damages  against  a  town 
and  another,  he  was  allowed  this  writ  to  compel  the  town 
to  levy  a  tax  to  pay  his  claim,  though  the  other  defendant 
had  property  subject  to  levy.4  In  these  writs  the  courts 
pass  on  real  contests,  enforce  or  protect  specific  rights,  and 
redress  actual  wrongs.5  The  writ  will  be  denied  if  the  ap- 
plicant fails  to  show  any  interest  in  the  action  prayed  for.6 
A  mere  creditor  of  the  state  cannot  obtain  a  mandamus, 
and  thereby  assume  to  exercise  a  supervisory  control  over 
the  treasurer  and  auditor  of  the  state  as  to  how  they  con- 
duct their  offices.  They  owe  a  duty  to  the  state  and  not 
to  him,  and  he  cannot  supervise  their  settlements  with  the 
various  tax  collectors.7  There  must  be  a  duty,  and  a  direct 
right  or  interest  to  be  enforced.  So,  if  there  is  not  a  serious 
contest,  the  writ  will  be  refused.8    The  same  rule  is  applied 

1  Smyth  v.  Titcomb,  31  Me.  272;  2  People  v.  San  Francisco  (Sup'rs), 

State  v.  Buchanan,  24  W.  Va.  362 ;  20  Cal.  591. 

People  v.  Salomon,  54  111.  39;  Bas-  3pe0ple  v.  Green  Co.  (Sup'rs),  12 

settv.  Barbin,  11  La.  An.  672.    On  Barb.  217. 

the  other  hand,  an  officer  whose  4  Palmer  v.  Stacy,  44  Iowa,  340. 

duty  it  was  to  levy  a  tax  was  held  5  Mossy  v.  Harris,  25  La,  An.  623. 

to  be  authorized  to  refuse  to  make  6  State  v.  School  Fund,  4  Kans. 

the  levy  because  he  correctly  con-  261. 

sidered  the  law  which  prescribed  7  State  v.  Dubuclet,  28  La,  An.  85. 

the  tax  to  be  void.  State  v.  Tappan,  8  Mossy  v.  Harris,  25  La,  An.  623. 
29  Wis.  664. 


76  DISCRETION    OF   COUET.  [§  66. 

when  the  right  sought  is,  or  has  become,  a  mere  abstract 
right,  the  enforcement  of  which,  by  change  of  circumstances 
since  the  commencement  of  the  suit,  can  be  of  no  substantial 
or  practical  benefit  to  the  petitioner.1  The  writ  is  only  issued 
when  it  is  necessary  to  secure  the  ends  of  justice  or  some 
good  and  useful  object.2  It  will  not  require,  that  the  public 
good  be  sacrificed  for  the  advantage  of  one  or  more  citizens.3 
Where  a  party  sought  to  compel  a  superintendent  of  schools 
to  contract  with  him  to  supply  the  school  books  to  be  used 
in  the  county  schools,  in  accordance  with  the'  law,  his  books 
having  been  adopted  by  the  proper  authorities  for  use  in 
those  schools,  the  court  refused  to  grant  the  writ,  because 
other  books  had  been  adopted  subsequently,  though  ille- 
gally, for  such  use,  which  had  been  purchased  b}^  the  patrons 
of  the  schools  and  were  already  in  use,  and  the  teachers 
were  required  to  use  them.  The  court  decided  that  public 
interests  were  first  to  be  considered,  and,  in  view  of  the 
complications  and  evil  consequences  likely  to  arise,  it  was 
not  considered  proper  to  grant  the  writ.4  A  mandamus 
will  not  be  granted,  to  compel  a  municipal  corporation  to 
pay  a  claim  against  it,  when  all  the  funds  it  possesses  are 
required  for  its  ordinary  and  necessary  expenses,  nor  to 
compel  it  to  levy  a  tax  in  order  to  pay  such  claim  from  the 
proceeds  thereof,  when  all  the  money  that  can  be  so  raised 
is  absolutely  required  for  such  expenses.5  When  the  lowest 
bidder  for  a  contract  asked  for  a  mandamus  to  compel  its 
award  to  him,  and  the  return  stated  that  after  the  open- 
ing of  the  bids  the  public  authorities  had  materially  al- 
tered the  design  of  the  work,  and  that  the  public  interests 
required  that  new  bids  should  be  advertised  for,  the  court 
in  its  discretion  refused  to  issue  the  writ.6  Substantial  in- 
terests 7  or  substantial  rights  -  must  be  involved.     The  writ 

i  Gormley  v.  Day,  114  111.  185.  &  See  §  132. 

2  George  &  Co.  v.  Co.  Com'rs,  59        <*  People     v.     Croton     Aqueduct 
Md.   255 ;    Booze    v.   Humbird,   27    Board,  49  Barb.  259. 

Md.  1.  7  State  v.   Burbank,   22  La.   An. 

3  State  v.  Graves,  19  Md.  351.  298;  Hall  v.  Grossman,  27  Vt  297. 
*  Effingham  v.  Hamilton  (Miss.,        estate  v.  Flad,  26  Mo.  Ap.  500. 

April  term,  1891),   10  South.  R.  39. 


§  67.]  DISCRETION   OF   COURT.  77 

was  refused  when  only  two  dollars  were  involved.1  It  will 
be  refused  if  the  effect  of  it  will  be  merely  to  encourage 
petty  legislation  and  to  delay  other  more  important  inter- 
ests.2 The  writ  will  not  issue  when  the  sole  purpose  and 
effect  of  it  is  to  relieve  the  party  asking  for  it  from  the 
consequences  of  his  own  mistakes  or  omissions.  Where  a 
clerk  issued  to  a  purchaser  at  a  tax  sale  such  a  tax  deed  as 
he  requested,  a  mandamus  to  make  him  issue  a  different 
deed  was  refused.  Had  the  clerk  made  the  mistake,  the 
writ  might  have  issued  to  make  him  correct  it.3  It  is  not 
considered  advisable  to  issue  this  writ  unless  substantial,  if 
not  final,  relief  can  be  given.4  It  has  been  said,  that  it  must 
be  made  to  appear  that  the  writ  will  be  effectual,  and  that 
the  court  has  jurisdiction  to  enforce  compliance  with  its 
commands.5  Where  the  end  could  not  be  accomplished, 
the  court  refused  to  set  any  of  the  machinery  in  motion. 
AVhere  there  was  no  appropriation  to  pay  a  claim,  the  court 
refused  to  compel  the  attorney-general  to  give  a  certificate 
concerning  it  to  the  comptroller,  or  the  comptroller  to  issue 
a  warrant.6  Where  it  appeared  that  the  object  sought  could 
have  been  secured  without  serious  difficulty  without  the  as- 
sistance of  the  court,  the  writ  was  refused.7 

§67.  The  writ  will  be  granted  only  in  case  of  neces- 
sity.—  This  writ  was  designed  only  to  meet  emergencies 
and  to  prevent  a  failure  of  justice.  The  courts  intend,  that 
it  shall  be  reserved  for  extraordinary  occasions  and  require 
litigants  to  use  all  available  means  to  obtain  the  enforce- 
ment  of  their  rights  before  they  apply  to  the  court  for  the 
assistance  of  this  writ.  Where  the  trustees  of  a  private 
corporation  refused  to  sign  and  publish  a  certain  notice  con- 
cerning the  legality  of  which  there  was  some  doubt,  the 
court  refused  to  allow  a  writ  of  mandamus  to  compel  them 

i  People  v.  Hatch.  33  111.  134.  5  People  v.  Colorado  C.  R  R,  42 

2  People  v.  Hatch,  33  111.  134.  Fed.  Rep.  638. 

3  Klokke  v.  Stanley,  109  111.  192.  « People  v.  Tremain,  29  Barb.  96. 

4  Sherburne  v.  Horn,  45  Mich.  "  Harrison  v.  Simonds,  44  Conn. 
160.  318. 


78  DISCKETION    OF    COUKT.  [§  68. 

to  do  so,  since  it  was  apparent  that  the  object  sought  — 
the  publication  of  a  proper  notice  —  could  have  been  se- 
cured without  serious  difficulty  without  the  aid  of  the  court.1 
The  writ  will  be  refused  when  the  respondents  admit  on 
the  record  that  they  are  willing  to  do  the  act  desired ; 2  but 
such  willingness  on  the  part  of  the  respondent  to  do  the 
act  desired  will  not  suffice  to  obtain  the  writ,  when  there 
is  any  substantial  defect  in  the  proof  of  the  relator's  right, 
for  that  must  always  be  clear.3  If  the  act  sought  has  al- 
ready been  done,4  or  is  voluntarily  done  after  the  hearing 
on  the  application,5  the  proceedings  will  be  dismissed. 

§  68.  Relator  must  show  good  motives  and  correct  ac- 
tions.—  Since  this  writ  is  only  issued  in  furtherance  of 
justice,  those  who  seek  its  assistance  must  satisfy  the  court 
that  their  application  is  bona  fide  and  for  a  proper  purpose.6 
It  will  be  refused  when  the  action  is  collusive  and  fictitious,7 
when  the  cause  is  brought  to  obtain  the  opinion  of  the  court 
on  a  point  of  law,8  to  determine  a  fanciful  question,9  for 
curiosity  10  or  a  mere  matter  of  taste,11  to  gratify  the  spite 
of  a  private  individual,12  or  when  the  relator  has  investi- 
gated, authorized  or  approved  of  the  act  complained  of.13 
When  a  corporator  wished  to  see  the  list  of  stockholders 
of  the  corporation  to  confer  with  them  as  to  suing  to  set 
aside  a  lease  made  by  the  company,  the  court  stated  that 
the  writ  would  not  issue  at  the  caprice  of  the  suspicious  or 
curious.14  An  application  for  a  mandamus,  to  compel  the 
issue  of  $50,000  worth  of  stock  and  the  sale  of  it  to  a 

1  Harrison  v.  Simonds,  44  Conn.  8  Q.  v.  Blackwell  R.  R,  9  D.  P.  G 
318.  558. 

2  People  v.  Dulaney,  96  111.  503.  9  People  v.  Masonic  B.  Assoc.,  98 

3  Bracken  v.  Wells,  3  Tex.  88.  111.  635. 

*  Johnson  v.  Ward,  82  Ala.  486;  10R.  v.    Staffordshire,   6  A.  &  E. 

Electric  R    R   v.    Grand    Rapids  101. 

(City),  84  Mich.  257.  u  State  v.  St.  Louis  P.  M.  Co.,  21 

5  State  v.  Railroad,  31  S.  C.  609.  Mo.  Ap.  526. 

6  R.  v.  Liverpool  R  R ,  21  L.  J.  12  Hale  v.  Risley,  69  Mich.  596. 
Q.  B.  284.  13  Hale  v.  Risley,  supra. 

7  State  v.  Burbank,  22  La.  An.  14  Com.  v.  Empire  P.  R.  R,  134  Pa 
298.  St  237. 


§  69.]  DISCRETION    OF    COUKT.  79 

company  for  $1,  was  refused  because  it  looked  like  fraud.1 
A  mandamus  was  refused  to  compel  the  signing  of  a  bill 
of  exceptions,  where  the  prisoner  had  escaped  after  con- 
viction. The  courts  will  not  encourage  escapes,  and  facili- 
tate the  evasion  of  the  justice  of  the  state,  by  extending 
to  escaped  convicts  the  means  of  reviewing  their  convic- 
tions.2 Where  a  mandamus  was  asked  to  compel  a  clerk, 
who  had  turned  over  his  office  to  another  person,  to  issue 
an  execution  on  a  judgment,  the  court  stated  that  in  its 
discretion  it  was  proper  to  dismiss  the  proceedings,  since 
they  were  really  brought  in  order  to  contest  a  statute 
which  consolidated  two  cities.3  The  writ  will  be  refused 
when  the  proceedings  have  been  tainted  with  fraud  and 
corruption 4  or  with  illegality.5  Where,  under  the  law,  it 
was  the  duty  of  a  municipal  corporation  to  pass  a  by-law 
grantinc  a  bonus  to  a  railroad  companv  in  accordance  with 
the  vote  of  the  electors  of  such  municipality,  a  mandamus 
to  compel  such  action  was  refused,  because  it  appeared  that 
bribery  had  been  used  in  the  election  to  control  the  result 
in  favor  of  granting  the  bonus.6 

§  69.  Mandamus  will  he  refused  to  direct  an  officer's 
general  course  of  conduct.— By  reason  of  the  difficulty 
attending  the  effort,  and  the  fact  that  in  such  cases  there 
is  generally  some  discretion  allowed  as  to  the  mode  of  act- 
ing the  com  Is  will  not  grant  a  mandamus  to  direct  the 
o-eneral  course  of  conduct  of  an  officer.  There  are  also 
generally  other  modes  of  compelling  an  officer  to  do  his 
duty.  Often  the  courts  are  not  well  qualified  to  take  the 
functions  of  an  officer  out  of  his  hands  and  to  take  upon 
themselves  the  direction  thereof.  Such  action  would  make 
the  writ  of  mandamus  an  ordinary  proceeding  instead  of 
an  extraordinary,  which  it  is  intended  to  be.  For  such  rea- 
sons the  police  officials,  when  they  disregard  or  violate  their 

i  Madison  Co.  v.  People,  58  111.  456.  4  Com.  v.  Henry.  49  Pa.St.  530. 

2  People  v.  Genet,  59  N.  Y.  80.  5  State  v.  Timken,  48  N.  J.  L.  87. 

3  Pistorius  v.  Steinpel,  81  Mich.  6  Langdon,  etc.  R.  R.,  In  re,  45 
133.  Up.  Can.  Q.  B.  47. 


80  DISCRETION    OF   COURT.  [§§  70,  71. 

duties,  may  be  required  to  do  a  certain  act  or  vacate  an 
improper  order,  but  will  not  be  controlled  as  to  their  gen- 
eral course  of  conduct.  Though  they  may  be  ordered  to 
perform  a  public  duty  incumbent  on  them,  yet  they  will 
not  be  directed  as  to  the  manner  of  such  performance.1 
Aldermen  will  not  be  compelled  by  this  writ  to  attend  the 
meetings  of  a  common  council  and  to  perform  their  gen- 
eral official  duties,  which  would  require  a  general  supervis- 
ion of  the  affairs  of  the  city.2 

§  70.  Writ  refused  when  delay  in  acting  not  unreason- 
able. —  The  courts  in  their  discretion  will  refuse  the  writ 
of  mandamus  when  there  has  been  no  unreasonable  delay 
by  the  officer  in  performing  the  duty  whose  execution  is 
sought,  but,  if  there  has  been  such  delay,  the  writ  will 
issue  to  compel  action.  The  writ  has  been  issued  to  compel 
the  county  commissioners  to  act  with  reasonable  prompt- 
ness in  passing  on  the  sufficiency  of  the  sureties  on  the  bond 
of  the  county  recorder  elect,3  and  to  make  a  new  county  pro- 
ceed to  act  in  determining  how  much  of  the  debt  of  an  old 
county,  of  which  it  was  formerly  a  part,  it  was  bound  to 
assume.4  It  is  too  late  to  apply  for  the  writ  when  the  offi- 
cers have  set  themselves  in  motion  and  are  proceeding  to 
discharge  their  duties.5  A  mandamus  was  refused  to  com- 
pel  the  regents  of  a  university  to  select  a  professor,  because 
they  were  investigating  the  qualifications  of  various  pro- 
fessors, and  had  not  unreasonably  delayed  their  decision.6 

§  71.  Writ  will  be  refused  when  it  will  work  injus- 
tice.—  The  court,  acting  under  its  discretion,  and  endeavor- 
ing only  to  enforce  justice,  will  not  allow  this  writ  to  be 
used  as  an  instrument  to  work  injustice,7  nor  to  introduce 

i  State  v.  Francis,  95  Mo.  44 ;  State  4  Lee  Co.  v.  State,  36  Ark.  276 ; 

v.  Murphy,  3  Ohio  C.  C.  332 ;  State  Monroe  Co.  v.  Lee  Co.,  36  Ark.  378. 

v.    Columbus     (Police    Board),    19  5  School   Directors  v.  Anderson. 

Weekly  L.  Bui.  347.  45  Pa.  St.  388 ;  State  v.  Davenport 

2  People,  v.  Whipple,  41  Mich.  548.  (City),  12  Iowa,  335. 

See  §113.  6  People  v.  University  (Regents), 

3  State  v.  Belmont  Co.  (Com'rs),     4  Mich.  98. 

31  Ohio  St  451.  '  State  v.  Burbank.  22  La.  An.  298. 


§  72.]  DISCRETION    OF   COURT.  81 

confusion  and  disorder.1  The  law  required  the  state  treas- 
urer to  issue  certain  scrip,  receivable  in  payment  of  taxes 
and  state  dues,  and  required  an  annual  tax  to  be  levied  to 
pay  the  same.  Injunctions  had  been  issued  restraining  state 
and  county  treasurers  from  receiving  such  scrip  on  the 
ground  that  it  was  void.  A  mandamus  against  the  comp- 
troller-general to  levy  the  tax  required  was  refused,  be- 
cause it  would  introduce  confusion  or  disorder.2  A  tech- 
nical compliance  with  the  law,  contrary  to  its  spirit,  will 
not  be  compelled  by  this  writ.3 

§  72.  Writ  will  be  refused  when  justice  will  not  be  sub- 
served thereby. —  Proceeding  on  the  principle  that  the 
court  will,  under  this  writ,  so  far  as  it  can,  furnish  the 
means  of  substantial  justice,  the  court  will  refuse  to  issue 
it  when  justice  will  not  be  subserved  thereby.  "When  an 
appeal  from  a  judgment  against  a  county  was  taken  to 
a  higher  court,  but  such  appeal  did  not  act  as  a  supersedeas, 
a  mandamus  to  compel  the  county  to  levy  a  tax  to  pay 
such  judgment  was  refused,  because  the  collection  of  the 
judgment  was  not  endangered  by  delay,  and  such  levy  of 
a  tax  might  work  an  injustice  in  case  the  judgment  was 
reversed,  it  being  admitted  that  the  appeal  was  taken 
in  good  faith.4  Where  a  railroad  corporation,  which  had 
lain  dormant  for  many  years,  without  entering  upon  any 
undertaking,  applied  for  a  mandamus  against  a  board  of 
public  works  to  compel  such  board  to  allow  it  to  enter 
upon  the  public  streets  to  construct  its  road,  and  it  appeared 
that  the  state  had  brought  an  action  against  such  corpora- 
tion to  dissolve  it,  and  had  applied  for  an  injunction  to  re- 
strain the  prosecution  of  the  mandamus  proceeding,  which 
application  the  court  refused  on  a  stipulation  by  the  cor- 
poration that  it  would  not  use  the  permit,  if  obtained,  to 
enter  upon  the  public  streets  till  the  action  to  dissolve  it 

i  State   v.   Compt.-Gen.,  4  Rich.        3  state  v.  Phillips  Co.  (Com'rs),  26 
<N.  S.)  185.  Kans.  419. 

2  State   v.   Compt-Gen.,  4  Rich.        4  Ter.  v.  Woodbury  (N.  Dak., April 
(N.  S.)  185.  1,  1890),  44  N.  W.  Rep.  1077. 

6 


82  DISCEETION    OF    COUET.  [§  73. 

was  defeated,  the  court  in  the  exercise  of  its  discretion  re- 
fused to  issue  the  mandamus}  Where  a  mandamus  was 
sought  in  order  to  set  aside  suits  brought  against  the  re- 
lator, who  claimed  that  such  suits  were  brought  against 
him  merely  to  delay  him  in  a  prior  suit  wherein  he  was 
plaintiff,  the  court  held  that  it  could  not  assume,  on  the  re- 
lator's assertion,  that  that  was  the  object  of  such  suits,  and 
that  it  could  not  try  such  issues,  and  refused  the  writ.2 

§  73.  Writ  will  Ibe  refused  when  it  will  operate 
harshly. —  By  virtue  of  its  discretionary  power  a  court 
will  refuse  this  writ  when  it  will  operate  harshly.  Where 
a  freeholder  was  using  a  road  principally  to  assist  him  in 
erecting  his  buildings,  whose  use  hurt  it  materially,  a  man- 
damus to  appoint  a  surveyor  to  examine  it,  and  upon  his 
report  to  compel  the  vestry  to  repair  it,  was  refused  at 
that  time,  because  it  would  operate  harshly  on  the  public 
and  would  be  for  the  benefit  of  that  freeholder  principally.3 
Where  a  mandamus  was  applied  for  to  compel  a  sheriff  to 
make  a  deed  to  a  purchaser  at  an  execution  sale,  the  court 
claimed  a  right  to  refuse  the  writ  when  obedience  thereto 
would  be  attended  with  manifest  hardships  and  difficulties 
to  others.  In  that  case  the  court  issued  the  writ,  but  with- 
out prejudice  to  certain  rights.4  If  under  the  circumstances 
the  court  thinks  that  in  justice  more  time  should  be  al- 
lowed before  the  writ  is  granted,  it  will  refuse  the  appli- 
cation. A  mandamus  was  applied  for  to  compel  a  railroad 
company  to  summon  a  jury  to  assess  the  damages  sus- 
tained in  the  construction  of  its  line,  including  the  value  of 
the  land  appropriated  and  the  injury  to  other  land  belong- 
ing to  the  relator.  Since  the  company  was  still  working 
faithfully  and  the  effects  of  its  operations  could  not  yet  be 
ascertained,  the  court  refused  the  writ  at  that  time.5  A 
mandamus  to  proceed  to  the  election  of  a  mayor  was  re- 

1  People  v.  Newton.  126  N.  Y.  656.  4  Van  Rensselaer  v.  Sheriff,  1  Cow. 

2  Burt  v.  Reilly,  82  Mich.  251.  501. 

3  King  v.  Paddington  Vestry,  9  B  Parkes,  Ex  parte,  9  DowL  614. 
B.  &  C.  456. 


§§  74,  75.]  DISCEETION   OF  COURT.  83 

fused,  because  the  judgment  of  ouster  against  the  incum- 
bent had  not  yet  been  signed.1 

§  74.  The  writ  will  not  he  issued  unless  it  can  effect 
substantial  justice. —  The  object  of  the  writ  is  to  afford 
substantial  justice ;  consequently  the  court,  in  its  discretion, 
will  not  issue  the  writ  where  the  respondents  have  the 
power  by  subsequent  action  to  nullify  its  effect.  An  officer 
will  not  be  restored  to  his  office  by  this  writ  when  he  has 
been  irregularly  suspended  or  removed  therefrom,  if  there 
are  good  grounds  for  such  suspension  or  removal,  and  the 
respondents  may  immediately  suspend  or  remove  him  reg- 
ularly for  the  same  causes.2  The  writ  will  not  be  granted 
to  restore  a  person  to  an  office  which  is  held  at  the  pleasure 
of  others,3  or  from  which  he  can  be  removed  by  a  majority 
vote,4  nor  to  a  place  which  is  a  mere  service.5 

§  75.  The  writ  will  not  issue  when  it  will  he  unavail- 
ing.—  Since  courts  of  justice  sit  solely  to  enforce  the  rights 
of  which  parties  have  been  deprived,  they  will  not  consider 
questions  when  they  are  powerless  to  grant  the  relief  asked. 
They  will  not  issue  the  writ  of  mandamus  when  it  is  clear 
that  it  will  prove  unavailing."  A  mandamus  to  an  assessor 
to  assess  certain  property  was  refused  because  at  that  time 
he  had  ceased  to  have  any  further  control  over  the  assess- 
ments under  the  law.7  If  the  writ  will  be  of  no  benefit  to 
the  applicant  it  will  be  refused.8  Where  a  tax  deed  would 
have  been  based  on  an  assessment,  which  was  irregular  and 
would  convey  no  title,  a  mandamus  to  make  the  tax  col- 

i  Rex  v.  West  Loe  (Corp.),  Burr.  5  Q.  v.  Raines,  3  Salk.  233. 

1386.  6  State  v.  New  Orleans,  34  La.  An. 

2  King  v.  London  (Mayor),  2  Term  469 ;  Mitchell  v.  Boardman,  79  Me. 
R.  177 ;  King  v.  Bristol  (Mayor),  1  469 ;  State  v.  Secrest,  33  Minn.  381 ; 
Dow.  &  Ry.  389 ;  Rex  v.  Axbridge  Maddox  v.  Neal,  45  Ark.  121 ;  Clark 
(Mayor),  Cowp.  523 ;  R.  v.  Griffiths,  v.  Crane,  57  Cal.  629 ;  Tennant  v. 
5  B.  &  Aid.  731 ;  People  v.  Police  Crocker,  85  Mich.  328 ;  Public 
Board,  35  Barb.  527.  Schools  (Corn'rs)  v.  County  Com'rs, 

3  R  v.  Coventry,  2  Salk.  430 ;  San-  20  Md.  449. 

dys,  Ex  parte,  4  B.  &  Ad.  863.  estate  v.  Archibald,  43  Minn.  328. 

*  Evans  v.  Heart  of  Oak  B.  Soc,        8Hall  v.  Crossman,  27  Yt.  297; 

12  Jur.  (N.  S.)  163.  Klokke  v.  Stanley,  109  BL  192 ;  Tay- 


84  DISCRETION   OF   COURT.  [§  75. 

lector  execute  a  deed  to  the  purchaser  was  refused.1  The 
writ  will  be  refused  when  the  act  sought  is  physically  im- 
possible,2 or  from  extrinsic  circumstances  has  become  so.3 
The  assessors  cannot  be  compelled  to  correct  the  assess- 
ment rolls  after  they  have  delivered  them  to  the  super- 
visors, who  have  issued  warrants  to  the  collector  to  collect 
the  taxes.4  A  sheriff  cannot  be  compelled  to  produce  the 
body  of  a  prisoner,  whom  he  has  surrendered  to  the  county 
commissioners,  though  he  did  so  after  the  writ  was  served 
on  him.  Though  the  officer  has  himself  put  it  out  of  his 
power  to  do  the  duty  demanded  of  him,  yet  the  writ  of 
mandamus  will  not  be  issued  to  compel  him  to  do  the  act, 
but  he  may  be  liable  in  damages  to  the  person  prejudiced  by 
his  act.5  The  writ  was  refused  where  it  was  sought  to  com- 
pel the  officers  in  charge  of  a  certain  fund  to  allot  money  to 
a  certain  religious  corporation,  they  having  already  divided 
up  and  delivered  the  whole  of  the  fund  to  other  similar 
bodies.6  A  writ  to  the  supervisors  to  strike  relator's  name 
from  the  assessment  roll  was  refused  because  the  assessors 
no  longer  had  control  over  it,  and  any  action  on  their  part 
would  not  stay  the  receiver  of  taxes  in  executing  the  war- 
rant therefor.7  A  town  was  authorized  to  subscribe  to  the 
capital  stock  of  a  navigation  company,  and  to  pay  therefor 
by  a  sale  of  its  bonds  on  certain  terms.  To  a  mandamus 
to  compel  the  payment  of  the  subscription  the  town  re- 
turned that  it  had  tried  in  vain  to  sell  the  bonds  on  the 


lor    v.  McPheters,  111  Mass.    351;  457;   State  v.  Lehre,  7  Rich.  234; 

Q.  v.  North wich  Sav.  Bank,  9  A.  &  O.  &  M.  R.  R.  v.  People,  120  111.  200. 

E.  729 ;  State  v.  Berry,  14  Ohio  St.  4  pe0ple  v.  Westchester  (Sup'rs), 

315.  15  Barb.  607 ;  Sullivan  v.  Peckham, 

i  Bosworth  v.  Webster,  64  Cal.  1.  16  R.  I.  525. 

2  O.  &  M.  R.  R.  v.  People,  120  111.  5  Rice  v.  Walker,  44  Iowa,  458 ; 
200 ;  Silverthorne  v.  Warren  R.  R,  Shandies,  Ex  parte,  66  Ala.  134. 

33  N.  J.  L.  173;  People  v.  Hayt,  66  6  Spiritual  A.   Soc.   v.    Randolph 

N.  Y.  606 ;  Ball  v.  Lappius,  3  Oreg.  (Selectmen),   58  Vt.    192 ;    State   v. 

55 ;  State  v.  Election  Inspectors,  17  Warren  Co.  (Trustees),  1  Ohio,  300. 

Fla.  26.  7  Colonial,  etc.  Co.  v.  Board  Sup'rs, 

3  Ackerman  v.  Desho  Co.,  27  Ark.  24  Barb.  166. 


§  76.]  DISCRETION   OF   COURT.  85 

prescribed  terms,  and  the  writ  was  dismissed.1  Before  a 
county  clerk  could  extend  a  tax  against  the  township  prop- 
erty to  raise  a  sufficient  sum  to  pay  a  township  donation 
to  a  railroad,  the  law  provided  that  the  result  of  the  vote 
must  have  been  certified  to  him  by  the  town  trustees.  For 
lack  of  such  certification,  though  the  town  had  no  trustees, 
the  clerk  was  not  required  to  extend  the  tax.2  A  clerk  of 
a  village  will  not  be  required  to  post  copies  of  an  ordinance 
of  the  village  council,  when  such  ordinance  has  been  re- 
pealed prior  to  the  application  for  the  mandamus? 

§  76.  Subject  continued. —  The  court,  however,  will  ex- 
ercise its  discretion  in  such  matters,  and  if  at  a  later  period 
the  act  desired  will  become  possible,  the  court  may  extend 
the  time  for  making  a  return  to  the  writ.  "When  a  public 
body  returns  that  it  has  not  the  funds  necessary  for  the  work 
commanded  by  the  alternative  writ,  the  court  will  not  quash 
the  return,  but  will  extend  the  time  for  making  a  return  to 
cover  a  period  within  which  the  act  commanded  can  be  done.4 
As  a  general  rule,  however,  the  writ  will  be  refused  when 
the  respondent  cannot  obey  it.  A  company  was  not  re- 
quired to  finish  its  railroad  line,  when  it  returned  that  it 
was  obliged  to  rely  for  the  necessary  money  on  subscrip- 
tions to  its  stock,  and  that  it  could  not  obtain  any  subscrip- 
tions.5 To  an  application  to  compel  a  railroad  to  make  a 
bridge  for  a  turnpike  company  over  its  track,  it  returned 
that  it  had  no  power  to  borrow  money,  its  share  capital 
was  spent,  and  its  borrowing  powers  exhausted.  The  writ 
was  refused.6  Where,  however,  a  corporation  has  by  its 
own  act  incapacitated  itself  from  doing  the  act,  or  has  vol- 
untarily placed  itself  in  a  position  requiring  resources  be- 
yond its  means  to  discharge  its  obligations,  the  writ  may  be 

iNeuse     N.     Co.     v.     Newbern  4  State  v.  Bergen  (Freeholders),  52 

(Com'rs),  7  Jones,  275.  N.  J.  L.  313. 

2  Springfield,  etc.  R.  R.  v.  Wayne  5Q.  v.  Ambergate,  etc.  R.  R.,  1  El. 
Co.  (Clerk),  74  111.  27.  &  BL  372. 

3  Gormley  v.  Day,  114  Dl  185.  6  Bristol,  etc.  R.  R,  In  re,  3  Q.  B. 

D.  10. 


86  DISCRETION    OF   COURT.  [§  76. 

issued.1  If,  however,  in  the  latter  case  the  company  should 
show  that  it  had  acted  in  good  faith,  and  its  disability  arose 
from  unforeseen  circumstances,  it  was  said  that  the  court 
might  refuse  the  writ.2  It  would  seem  that  the  only  ob- 
ject in  issuing  the  writ  in  such  case  would  be  to  bring  a 
pressure  to  make  the  company  exert  itself  to  comply  with 
the  order,  and  possibly  to  punish  for  wrong-doing,  since,  in 
case  of  non-compliance  with  the  order,  the  answer  that  the 
act  was  impossible  would  be  sufficient  in  proceedings  for 
contempt ;  for  it  is  not  true  in  all  cases  that  the  court  will 
not  order  by  mandamus  the  performance  of  a  certain  duty 
because  the  respondent  has  not  within  himself  the  power 
to  do  the  thing.  "Where  an  order  was  asked  that  a  railroad 
company  be  required  to  restore  a  highway  which  it  had 
injured  in  constructing  its  line,  and  the  company  returned 
that  to  do  so  it  would  be  necessary  for  it  to  condemn  land 
by  legal  proceedings,  the  court  held  that  the  writ  could 
issue,  and,  if  the  company  could  not  succeed  in  condemning 
land  and  was  defeated  in  its  efforts  to  do  so,  that  would 
be  a  good  answer  to  proceedings  for  contempt.3  Probably 
for  the  same  reasons  a  mandamus  was  issued  to  a  town 
collector  to  pay  the  tax  collections  to  the  proper  officer? 
though  he  had  already  paid  them  to  the  wrong  officer  and 
thereby  made  his  duty  difficult  or  inconvenient ; 4  and  to  a 
county  treasurer  to  pay  coupons  on  county  bonds,  who 
had  received  sufficient  funds  therefor  but  had  allowed  the 
county  court,  after  demand  made  on  him  to  pay  the  cou- 
pons, to  take  the  funds  from  his  control  and  place  them  in 
New  York,  in  order  that  these  coupons  might  be  paid  there.5 
"When  a  corporation  is  unable  to  discharge  its  duties,  it  has 
been  asserted  that  quo  warranto,  and  not  mandamus,  should 
be  resorted  to.6 

!Q.  v.  Birmingham,  etc.  R.  R,  2        3  People  v.  Dutchess,  etc.  R  R,  58 
Ad.  &  E.  (N.  S.)  47 ;  Silverthorn  v.    N.  Y.  152. 
Warren  R  R,  33  N.  J.  L.  173.  4  People  v.  Brown,  55  N.  Y.  180. 

2  Q.  v.  York,  etc.  R  R,  1  E.  &  B.        5  state  v.  Craig,  69  Mo.  565. 
17a  e  o.  &  M.  R  R  v.  People,  120  IU, 

200. 


§§  77,  78.]  disceetion  or  court.  87 

§  77.  If  the  relator's  rights  expire  before  the  hear- 
ing, the  writ  will  be  refused.—  When  the  term  of  office 
which  the  relator  is  seeking,  or  his  right  to  have  an  act 
done,  has  expired  before  the  writ  is  heard,  the  mandamus 
will  be  refused.1    A  party  was  entitled  to  the  issuance  of  a 
license,  but,  before  the  writ  was  heard,  such  right  ceased 
by  a  change  of  the  city  ordinance,  and  his  application  was 
refused.2    A  mandamus  to  a  city  council  to  elect  certain 
officers  was  refused,  because  the  term  for  which  they  were 
to  be  elected  had  expired  before  the  hearing.3    A  board  of 
canvassers  will  not  be  required  to  re-assemble,  canvass  the 
votes,  and  declare  the  result,  when  the  term  has  expired 
for  which  the  party  was  elected.4     A  common  council  can- 
not be  required  to  select  papers  for  public  advertising  for 
a  certain  year  after  that  year  has  expired.5    A  mandamus 
to  keep  a  public  school  open  for  three  months  during  a  cer- 
tain summer  was  refused,  because  that  period  of  time  had 
passed  when  the  cause  came  on  to  be  heard.6    So,  in  its  dis- 
cretion, the  court  will  refuse  the  writ,  if  the  term  of  office 
which  the  relator  seeks  will  expire  before  the  action  will 
be  finished.7    A  board  of  canvassers  will  not  be  required 
to  convene  and  declare  the  result  when  they  have  ceased 
to  exist.8    Church-wardens  cannot  be  compelled  to  make 
tax  rates  after  their  authority  in  the  premises  has   ex- 
pired.9 

§  78.  Writ  will  be  denied  if  the  respondent  has  gone 
out  of  office,  or  the  act  ceases  to  he  his  duty.—  This  writ 
will  be  denied  when,  for  any  cause,  it  becomes  legally  im- 
possible, or  rather  ceases  to  be  a  legal  duty.10    When  the 

iColvard   v.  Commissioners,  95  7  Woodbury  v.  County  Commis- 

N.  C.  515.  sioners,  40  Me.  304. 

2  Cutcomp  v.  Mayor,  60  Iowa,  156.  8  Mackey,  Ex  parte,  15  S.  C.  322 ; 

3  People  v.  Troy  (City),  82  N.  Y.  People  v.  Greene  County  (Sup'rs), 
575.  12  Barb.  212. 

4  Potts  v.  Turtle,  79  Iowa,  253.  »Q.  v.  All  Saints  (Church-ward- 

5  People  v.  Troy  (Common  Coun-  ens),  1  Ap.  Cas.  611. 

cil).  78  N.  Y.  33.  10  State  v.  Perrine,  34  N.  J.  L.  254 ; 

6  Wood  v.  Farmer,  69  Iowa,  53a    State  v.  Bowden,  18  Fla.  17. 


88  DISCRETION    OF   COURT.  [§  79. 

law  which  created  the  duty  is  repealed,  mandamus  will  not 
lie  to  enforce  the  duty.  When  the  law  which  created  a 
board  for  canvassing  election  returns  has  been  repealed,  no 
order  can  be  issued  to  such  board  relative  to  such  matters, 
not  even  to  finish  the  work  they  have  begun.1  When  the 
term  of  office  of  the  party  sought  to  be  coerced  has  ex- 
pired, the  writ  against  him  will  be  refused,  since  the  legal 
ability  to  do  the  act  exists  no  longer.2  A  clerk  of  a  school 
district  was  not  required  to  amend  his  minutes  when  he  had 
ceased  to  be  the  clerk,  and  had  moved  out  of  the  jurisdic- 
tion of  the  court.3  Exceptions  to  this  rule  have  been  al- 
lowed. A  judge  was  required  to  sign  a  bill  of  exceptions, 
though  his  term  of  office  had  expired,  on  the  ground  that 
otherwise  the  litigant  would  be  remediless,  and  also  that 
this  was  one  of  the  duties  the  judge,  in  taking  office,  agreed 
to  discharge.4  So  the  writ  is  allowed  if  the  late  incumbent 
retains  the  books  pertaining  to  his  office,5  or  if  he  resigned 
his  office  in  order  to  avoid  the  service  of  process.6  In  one 
case  where  the  respondent's  term  of  office  had  expired  be- 
fore the  decision,  the  writ  issued  to  give  relator  his  costs, 
and  to  make  clear  his  equity  against  the  state.7 

§  79.  Mandamus  to  compel  an  action  after  the  time 
limited  for  its  performance. —  Whether  a  mandamus  lies 
to  compel  the  doing  of  an  act  after  the  time  has  passed  in 
which  by  law  it  is  required  to  be  clone,  is  a  question  of 
some  difficulty.  Since  the  writ  only  issues  to  compel  the 
doing-  of  an  act  which  it  is  the  dutv  of  the  officer  to  do 
without  the  writ,8  how  can  it  issue  to  compel  him  to  do  an 
act  at  a  time  when  no  law  requires  him  to  do  it,  and  when 


Q 


i  State  v.  Gibbs.  13  Fla.  55.  3  Mason  v.  School  District,  20  Vt 

State  v.  Kirman.  17  Nev.  380;  487. 

Colvard  v.  Commissioners,  95  N.  C.  4  State  v.  Barnes,  16  Neb.  37. 

515 ;  Mackey,  Ex  parte,  15  S.  C.  322 ;  5  state  v.  Kirman,  17  Nev.  380. 

State  v.  Lynch,  8  Ohio  St  347 ;  State  6  state  v.  Guthrie,  17  Neb.  113. 

v.  Perrine,  34  N.  J.  L.  254 ;  People  7  People   v.    Contract  Board,  46 

v.  Monroe    Oyer  &  Terminer,  20  Barb.  254. 

Wend.  108.  8  See  ch.  6,  §  — . 


79.]  DISCRETION    OF   COURT. 


89 


by  inference  the  law  forbids  him  to  do  it?     When  the  law 
requires  an  officer  to  do  an  act  on  or  before  a  certain  time, 
and  such  limitation  as  to  time  is  considered  to  be  only 
directory,  a  writ  of  mandamus  may  issue  to  compel  the 
doing  of  the  act  though  such  period  has  passed.1     When 
the  law  has  fixed  a  certain  time  wherein  to  do  the  act,  with 
no  limitation  showing  that  it  was  the  intention  to  forbid 
later  action,  the  provision  has  been  held  to  be  directory, 
and  the  duty  has  been  enforced  at  a  later  period  by  this 
writ.2    Where  it  was  evident  that  the  law  required  the  act, 
if  done  at  all,  to  be  done  before  a  certain  time,  the  writ  has 
been  refused.     A  levy  court  cannot  be  required  to  make  a 
levy  after  the  time  limited  by  law  for  the  making  of  the 
levy.3     It  has  been  held  generally,  that  the  writ  will  never 
issue  to  an  officer  to  do  an  act,  when  by  lapse  of  time  he 
has  lost  all  jurisdiction  over  the  matter.4    On  the  other 
hand  the  writ  has  often  issued  after  the  time  for  the  per- 
formance of  the  act  had  passed,  when  the  relator  was  not 
in  fault,  but  the  non-performance  was  due  to  the  neglect, 
or  refusal  to  act,  of  the  officer.5    In  other  cases  all  limita- 
tions in  the  law  as  to  time  of   performance  have  been 
ignored,  and  the  courts  have  considered  that  such  provis- 
ions in  the  laws  must  be  construed  with  reference  to  their 
power  to  superintend  and  control  inferior  jurisdictions  and 
authorities  of  every  kind.     They  have  called  attention  to 
the  great  evils  which  might  be  perpetrated  if  officers  could 
flagrantly  ignore  and  violate  their  duties,  with  no  power  in 
the  courts  to  redress  the  grievance.     They  also  hold  that 
the  writ  of  mandamus  was  designed  to  be  the  proper  rem- 
edy in  such  cases. 

i  King  v.  Norwich  (Mayor),  1  B.  Gen.  v.  Lawrence  (City),  111  Mass. 

&  Ad.  310 ;  Rex  v.  Sparrow,  2  Stra.  90. 

1123.  SEUicott  v.  Levy  Court,  1  Ear.  & 

2  People  v.  Chenango  (Sup'rs),  8  J.  359. 

N.    Y.    317;    People   v.   Brooklyn  4  Iron  Companies  v.  Pace,  89  Term. 

(City  Council),  77  N.  Y.  503 ;  Att'y  707. 

s  See  §192. 


90  DISCRETION   OF   COURT.  [§§  SO,  81. 

§  80.  Instances  of  issuing  writ  after  the  time  to  per- 
form the  act  had  expired. —  A  writ  of  mandamus  was 
sought  to  compel  a  mayor,  elected  in  1857,  and  the  two  as- 
sessors, who  were  in  office  in  1856,  to  hold  a  court  to  revise 
the  list  of  burgesses  of  the  city  for  the  year  1856,  which  the 
law  required  to  be  done  in  1856,  not  later  than  October  15. 
It  was  objected  that  the  time  for  such  action  was  limited 
to  October  15,  1856,  and  that  such  action  was  not  the  duty 
of  a  mayor  elected  to  office  in  1857.     The  opinion  of  the' 
court  (several  judges  delivered  dissenting  opinions)  says: 
"  All  statutes  are  to  be  read  with  reference  to  this  known, 
acknowledged,  recognized  and  established  power  of  the  court 
of  queen's  bench,  as  much  as  if  express  words  were  found 
in  it  directing  what  the  court  has  ordered.     We  therefore 
attach  no  importance  to  the  circumstance  that  the  mayor 
came  into  office  after  the  time   when  the  municipal  corpo- 
ration directed  the  court  to  be  holden.     .    .    .     That  court 
has  power  by  the  prerogative  writ  of  mandamus  to  amend 
all  errors  which  tend  to  the  oppression  of  the  subject  or 
other  misgovernment,  and  it  ought  to  be  used  when  the 
law  has  provided  no  specific  remedy,  and  justice  and  good 
government  require  that  there  ought  to  be  one  for  the  exe- 
cution of  the  common  law  or  the  provisions  of  a  statute." 
The  writ  was  ordered  to  be  issued.1     Where  a  court  failed 
during  a  certain  term  thereof  to  certify  a  case  to  an  appel- 
late court,  as  required  by  law,  it  was  compelled  to  do  so 
at  a  later  period  by  order  of  the  appellate  court,  which 
claimed  the  right  so  to  do  under  its  supervisory  powers.2 
The  writ  has  been  issued  to  judges  to  sign  bills  of  excep- 
tions, when,  owing  to  their  own  fault,  they  had  failed  to  do 
so  within  the  time  limited  by  law.3 

§  81.  The  court  will  protect  the  respondent's  rights. 
In  passing  upon  the  propriety  of  issuing  this  writ  the  courts 
are  very  careful  to  see,  that  the  officer  upon  whom  compul- 
sion is  to  be  exercised  shall  not  suffer  thereby,  and  to  see 

1  Rochester  (Mayor)  v.  Queen,  L.        2  State  v.  Philips,  96  Mo.  570. 
J.  27  N.  S.,  Q.  B.  434  s  See  §  192. 


§  S2.]  DISCRETION   OF   COtJET.  91 

that  his  rights  are  fully  protected.    The  writ  will  be  refused 
when  the  performance  of  the  duty  sought  will  involve  the 
officer  in  litigation,1  the  result  of  which  is  in  doubt,2  or  when 
litigation  is  required  to  settle  the  matter.3     Such  doubt 
must  exist  in  the  mind  of  the  court ;  if  the  assertion  thereof 
is  a  mere  pretense,  the  court  will  not  listen  to  it.4     Where 
it  will  subject  the  officers  to  an  action  of  trespass,  the  writ 
will  not  lie  to  commissioners  of  highways  to  open  a  road,5 
to  make  justices  enforce  by  distress  warrant  a  highway 
rate,  if  they  are  threatened  with  an  action,  and  no  indemnity 
has  been  offered  by  them,6  or  to  justices  to  sue  a  high  con- 
stable on  his  bond  for  neglect  of  duty,  since  there  is  no  pro- 
vision for  reimbursing  themselves  for  the  costs  which  they 
might  incur.7    So  where  a  party  was  required  by  statute  to 
levy  certain  moneys  from  other  parties,  and  to  pay  over  a 
portion  thereof  to  another  person,  though  the  writ  was 
issued  to  take  the  necessary  and  legal  measures  to  obtain 
payment,  such  order  was  considered  not  necessarily  to  mean 
to  file  suits,  and  the  implication  is  contained  in  the  opinion 
that  the  respondent  would  not  be  ordered  to  bring  suits.8 
Since  the  plaintiff  must  always  prove  his  case,  if  it  remains 
doubtful  whether  the  act  sought  will  make  the  officer  a 
trespasser,  the  writ  will  be  refused.9 

§  82.  Parties  will  not  be  harassed  by  suits. — In  exercis- 
ing its  discretion  in  such  matters  the  court  adopts  the  equi- 
table rule  that  it  will  prevent  parties  from  being  needlessly 
harassed  by  litigation.  If  the  parties  have  already  com- 
menced proceedings  in  another  case,  even  though  in  a  differ- 

1 3  Stephen's   Nisi  Prius,    2305 ;  6  King  v.  Somersetshire  (Just),  4 

King  v.  Halls,  3  A.  &  E.  494 ;  King  N.  &  M.  394 ;  King  v.  Mirehouse,  2 

v.  Greame,  2  Ad.  &  E.  615.  Ad.  &  E.  632. 

2  State  v.  Perrine,  34  N.  J.  L.  254 ;  i  Carlton  High  Dale,  Ex  parte,  4 

King  v.  Dayrell,  1  B.  &  C.  485.  N.  &  M.  312. 

3Townes  v.  Nichols,  73  Me.  515.  &Q.  v.  Southampton,  1  Best  &  S. 

*  King  v.  Dayrell,  1  B.  &  C.  485.  5 ;  Carlton  High  Dale,  Ex  parte,  4 

s  People  v.  Highway  Com'rs,  27  N.  &  M.  312. 

Barb.  94 ;  Clapper,  Ex  parte,  3  Hill,  9  Brokaw  v.  Highway  Com'rs,  130 

458.  Ih\  482. 


92  DISCEETION    OF   COUKT.  [§  82. 

ent  court,  which  will  settle  the  questions  attempted  to  be 
raised  by  mandamus,  the  writ  will  be  refused.1  That  a 
suit  is  pending  to  test  the  validity  of  a  will  is  a  sufficient 
return  to  a  mandamus  to  grant  probate  thereof  to  the  re- 
lator.2 To  an  application  to  compel  the  county  treasurer 
to  execute  two  tax  deeds  to  the  relator,  the  answer  was,  that 
the  respondent's  predecessor  made  the  relator  a  deed  there- 
for, and  a  suit  was  now  pending  against  him  to  set  it  aside. 
The  court  decided  that  the  suit  was  pending  in  a  court  com- 
petent to  settle  the  matter,  and  that  the  issuance  of  a  writ 
of  mandamus  would  be  oppressive.3  The  writ,  however,  will 
issue,  if  such  suit  is  merely  colorable  and  not  maintainable,4 
or  will  not  fully  determine  the  question,  or  complete  jus- 
tice cannot  be  obtained,  and  such  decision  will  be  no  bar 
to  another  suit.5  A  mandamus  was  issued  to  a  mayor  and 
the  capital  burgesses  to  proceed  to  the  election  of  two  capi- 
tal burgesses,  there  being  two  vacancies  in  the  board,  though 
a  quo  warranto  was  then  pending  to  try  the  mayor's  title." 
Where  it  appeared  that  a  mandamus  proceeding  had  been 
filed  in  another  court  and  there  refused,  an  appellate  court 
refused  to  grant  a  similar  mandamus  on  an  original  pro- 
ceeding, since  it  should  hear  and  determine  the  questions  in- 
volved by  an  appeal  from  the  judgment  rendered  in  the 
lower  court.7  Though  the  fact  that  there  is  a  remedy  in 
equity  is  no  bar  to  a  writ  of  mandamus,  and  is  only  a  mat- 
ter appealing  to  the  discretion  of  the  court  on  the  subject,8 
yet  if  a  cause  involving  the  same  questions  is  pending  in  a 
court  of  chancery,  and  that  court  can  grant  full  and  com- 
plete relief,9  or  is  better  adapted  to  regulate  the  rights  of 

1 E.  v.  Wheeler,  Cas.  temp.  Hardw.  3  state  v.  Patterson,  11  Neb.  266. 

99;  People  v.  Chicago,  53  111.  424;  4  People   v.    State  Treasurer,  24 

People  v.  Hake,  81  111.  540 ;  People  Mich.  468. 

v.  Warfield,  20  111.  159 ;  Swartz  v.  5  People  v.  Salomon,  51  111.  37. 

Large  (Kans.,  Nov.  7,  1891),  27  Pac.  6  King  v.  Grampound  (Mayor),  6 

R  993 ;  People  v.  Wiant,  48  III.  263 ;  T.  R.  301. 

Oakes  v.  Hill,  8  Pick.  47 ;  State  v.  7  People  v.  Thompson,  66  Cal.  398. 

Otoe  Co.  (Board  Com'rs),  10  Neb.  *  Ante,  §55. 

384,  9  Hardcastle  v.  Maryland,  etc.  R. 

2  R  v.  Hay,  4  Burr.  2295.  R,  32  Md.  32. 


§  S3.]  DISCRETION   OF   COURT.  93 

the  parties,1  the  writ  will  be  refused.  The  court  will  not 
by  this  writ  compel  a  party  to  disobey  an  injunction,2 
though  the  applicant  was  not  a  party  thereto,3  unless  such 
action  is  necessary  to  protect  his  rights.4  The  applicant's 
remedy  is  to  apply  to  be  admitted  as  a  party  to  the  injunc- 
tion proceedings.5  If,  however,  the  court  believes  the  in- 
junction to  have  been  collusively  obtained,6  or  to  be  plainly 
void  for  want  of  jurisdiction,7  it  will  ignore  it. 

§  83.  Discretion  used  in  protecting  the  rights  of  third 
parties.—  The  courts  are  very  reluctant  to  grant  this  writ, 
when  it  may  injuriously  affect  the  rights  of  third  parties 
who  are  not  before  the  court,  and  for  that  reason  have  often 
refused  it.8  It  has  been  refused  when  the  granting  thereof 
might  involve  such  third  parties  in  difficulties  and  hardships, 
or  might  give  advantages  over  them,9  which  might  embar- 
rass them  in  suits  growing  out  of  the  question.10  The  writ 
was  applied  for  to  compel  a  town  treasurer  to  issue  a  war- 
rant of  distress  against  the  tax  collector,  who  failed  to  col- 
lect and  pay  over  to  the  treasurer  certain  taxes  in  the  time 
allowed  by  law.  It  appeared  that  those  taxes  were  illegally 
assessed,  so  that  the  officer  had  no  right  to  collect  them, 
and  in  case  of  collection  the  tax-payers  had  a  right  to  restitu- 
tion thereof.  The  court  in  its  discretion  refused  the  writ, 
saying  that  it  would  not  throw  the  tax-payers  into  an  ex- 
pensive field  of  litigation.11  Where  the  owner  of  land,  which 
was  sold  by  the  sheriff  for  non-payment  of  taxes,  asked  for 
a  writ  of  mandamus  to  compel  the  sheriff  to  pay  to  him 
the  surplus  of  the  money  received  on  each  sale,  the  court  in 
its  discretion  refused  the  writ,  since  there  wTas  an  adequate 
remedy  by  suit  at  law  against  the  sheriff,  and  also  because 

i  Q.  v.  Pitt,  10  A.  &  E.  272.  7  State  v.  Byers,  67  Mo.  706 ;  Flem- 

2  People  v.  Warfield,  20  111.  150.  ing,  Ex  parte,  4  Hill,  581. 

3  Ohio,  etc.  R.   R.  v.  Wyandotte  8  Oakes  v.  Hill.  8  Pick.  47 ;  Ham 
Co.  (Com'rs),  7  Ohio  St.,  278.  v.  Toledo,  etc.  R.  R,  29  Ohio  St.  174 ; 

4  Atchison,  etc.  R  R.  v.  Jefferson  ante,  §  65. 

Co.  (Com'rs),  12  Kans.  127.  9  People  v.  Forquer,  Breese,  68. 

5  State  v.  Kispert,  21  Wis.  387.  iopeople  v.  Curyea,  16  I1L  547. 

6  State  v.  Dubuclet,  26  La.  An.  127.       »  Waldron  v.  Lee,  5  Pick.  323. 


94  DISCRETION   OF   COURT.  [§  84. 

the  sheriffs  return  showed  that  other  parties  claimed  the 
money,  who  were  not  before  the  court  in  that  proceeding.1 
A  mandamus  to  compel  a  board  of  public  works  to  vacate 
their  approval  of  a  plat  of  certain  ground  in  a  city  was  re- 
fused, because  the  makers  of  the  plat,  and  the  persons  who 
were  proved  to  have  bought  lots  as  established  by  that  plat, 
were  not  before  the  court.2 

§  84.  The  writ  will  not  issue  when  another  tribunal 
can  require  the  act  to  be  done. —  One  of  the  cardinal  prin- 
ciples connected  with  the  issuance  of  the  writ  of  mandamus 
is,  that  it  will  run  only  when  there  is  no  other  remedy. 
For  this  reason  the  courts  refuse  to  allow  it  to  run  against 
one  who  is  subject  to  some  other  authority,  which  can  com- 
pel the  respondent  to  do  the  act  desired  and  can  punish 
for  neglect  or  refusal.3  "When  a  county  board  of  revenue 
has  allowed  a  claim  and  ordered  their  clerk  to  draw  a  war- 
rant on  the  county  treasurer,  a  mandamus  will  not  be  al- 
lowed to  compel  him  to  do  so,  until  the  complainant  has  first 
unsuccessfully  tried  to  have  the  board  compel  him.4  When 
a  railroad  is  in  the  hands  of  a  receiver,  a  mandamus  will 
not  issue  to  such  company  and  the  receiver,  directing  their 
operations,  because  the  court  which  first  took  control  has 
exclusive  jurisdiction  and  can  do  what  is  desired,  while  any 
interference  would  produce  a  clashing.5  The  propriety  of 
using  this  writ  to  compel  a  sheriff  to  levy  on  certain  prop- 
erty has  been  questioned.6  This  writ  was  not  considered 
to  be  proper  to  compel  a  superintendent  of  police  to  dis- 
charge his  official  duty  or  to  obey  the  orders  of  the  board 
of  police  commissioners,  when  such  board  had  power  to  re- 
move him  from  office  for  such  neglect.7  The  writ,  when 
applied  for  by  several  of  the  aldermen  of  the  city  to  com- 

1  State  v.  Turner,  32  S.  C.  348.  *  Parker  v.  Hubbard,  64  Ala.  203. 

2  Campau  v.  Board  Public  Works,        5  State  v.  Marietta,  etc.  R.  R,  35 
86  Mich.  372.  Ohio  St.  154. 

3R  v.  Surrey,  1  Chit  650;  Lord        estate  v.  Craft,  17  Fla.  722. 
Littledale  in  R.  v.  Jeyes,  3A.&E.        7  State  v.  Murphy,  3  Ohio,  C.  C. 
423.  332. 


§  85.]  DISCRETION   OF   COURT.  95 

pel  the  marshal  of  the  city  to  place  a  police  officer  in  a  cer- 
tain district,  in  accordance  with  the  requirements  of  an 
order  passed  by  the  board  of  aldermen,  was  refused,  because 
the  mayor  of  the  city  had  authority  by  the  city  charter  to 
punish  officers  for  neglect  of  duty.     Though  in  this  case 
the  mayor  refused  to  promulgate  the  order  of  the  board  of 
aldermen,  the  court  considered  it  more  expedient  that  the 
inconveniences  of  an  exceptional  case  should  be  endured 
than  that  the  court  should  be  subject  to  be  called  on  to 
compel  any  police  officer  to  do  his  duty.1     If,  however,  the 
proper  tribunal  fails  to  require  the  officer  to  perform  the 
duty  demanded  from  him,  the  writ  of  mandamus  will  be 
granted.2    It  has  been  considered  that  when  an  officer  fails 
to  do  his  duty,  the  proper  remedy  is  by  motion  in  the 
proper  court,3  or  by  action  on  his  bond,4  to  which  may  be 
added,  as  above  mentioned,  as  being  allowable  whenever 
there  is  no  other  adequate  remedy,  the  right  to  compel  his 
action  by  mandamus?    A  court  will  refuse  to  issue  a  writ 
of  mandamus,  except  in  a  case  of  urgent  and  immediate 
necessity,  to  enforce  the  process  of  an  inferior  court ;  since 
such  inferior  court,  if  it  has  the  power  to  issue  such  pro- 
cess, has  also  power  to  compel  obedience  thereto ;  and  if  it 
has  not  the  power  to  issue  the  process,  the  higher  court 
cannot  validate  it  by  such  writ  of  mandamus* 

§  85.  The  last  rule  not  strictly  observed. —  The  rule,  not 
to  issue  this  writ  to  enforce  duties  which  another  person 
or  tribunal  can  enforce,  is  only  one  of  convenience,  and  the 
courts  have  often  disregarded  it  and  issued  the  writ,  though 
the  respondent  was  subject  to  another  power  which  could 
compel  the  discharge  of  such  duty.  The  writ  has  been  is- 
sued to  the  clerk  of  a  court  to  compel  him :  to  issue  an  exe- 
cution,7 to  issue  a  writ  of  assistance,8  to  furnish  copies  of 

1  Alger  v.  Seaver,  138  Mass.  331.        «  People  v.  Edwards,  66  111.  59. 

2  State  v.  Le  Fevre,  25  Neb.  223.  ?  People  v.   Gale,  22  Barb.   502; 

3  Cowell  v.  Buckelew,  14  CaL  640.    Pickell  v.  Owen,  66  Iowa,  485. 

<  Fulton  v.  Hanna,  40  Cal.  278.  8  Att'y-Gen'l  v.  Lum,  2  Wis.  507. 

5  Mocre  v.  Muse,  47  Tex.  210. 


96  DISCRETION   OF   COURT.  [§§  86,  87. 

his  court  records  on  the  payment  of  his  fees,1  to  make  out 
and  deliver  a  transcript  for  use  in  a  writ  of  error,2  to  re- 
ceive and  file  the  sheriff's  bond  after  its  approval  by  the 
court,3  to  issue  an  execution  for  the  recovery  of  land  and 
for  damages,4  and  to  issue  a  citation  to  those  interested 
relative  to  the  administration  of  an  estate.5  In  these  cases 
attention  seems  not  to  have  been  called  to  the  fact  that 
relief  might  have  been  obtained  from  the  judge  of  the  court 
of  which  the  respondent  was  the  clerk.  But  other  courts 
have  refused  the  writ  for  the  reason  mentioned.  It  was 
refused  to  compel  the  clerk  to  issue  an  execution,6  and  to 
spread  on  the  records  of  the  court  certain  orders  made  by 
the  judge  while  holding  court. 7 

§  86.  A  mandamus  not  issued  to  command  A.  to  com- 
mand B. —  This  writ  is  used  to  direct  a  person  to  do  a  cer- 
tain act,  and  will  not  lie  to  one  person  to  command  another 
to  do  a  certain  act,8  which,  it  is  said,  would  be  absurd.9 
Where,  however,  it  is  the  duty  of  A.  to  act  only  under  instruc- 
tions from  B.,  the  writ  will  lie  to  B.  A  writ  of  mandamus 
was  issued  to  a  city  council  to  direct  the  city  solicitor  to 
proceed  to  sell  according  to  law  lands  of  delinquents  to  en- 
force the  payment  of  taxes,  the  city  council  being  author- 
ized to  cause  such  lands  to  be  sold,  and  being  charged  with 
the  duty  of  directing  the  city  solicitor  to  proceed  and  sell 
them.10 

§  87.  Laches  will  bar  relief  by  mandamus. —  The  courts 
require  those  who  would  avail  themselves  of  the  assist- 
ance of  this  writ  to  be  prompt  in  demanding  the  enforce- 
ment of  their  rights.  By  lapse  of  time  the  necessary  evi- 
dence is  lost,  and  third  parties  may  acquire  rights  growing 
out  of  the  existing  state  of  affairs.  Where  the  parties  have 
been  guilty  of  unreasonable  delay  in  applying  for  this  writ, 

i  State  v.  Meagher,  57  Vt.  398.  6  Gooch  v.  Gregory,  65  N.  C.  142. 

2  Davis  v.  Carter,  18  Tex.  400.  '  Cowell  v.  Buckelew,  14  Cal.  640. 

3  People  v.  Fletcher,  2  Scam.  482.  *  Rowland,  Ex  parte,  104  U.  S.  604. 
«  People  v.  Loucks,  28  CaL  68.  9  Regina  v.  Derby  (Mayor),  2  Salk. 
5Carnochan,    Ex   parte,    Charlt.  436. 

216.  io  State  v.  Camden,  39  N.  J.  L.  620. 


§  87.]  DISCRETION    OF   COURT.  97 

the  courts  have  not  hesitated  to  refuse  such  relief,  unless  the 
delay  was  accounted  for  to  their  satisfaction.1  In  deter- 
mining what  will  constitute  unreasonable  delay,  regard 
should  be  had  to  the  circumstances  which  justify  the  delay, 
to  the  nature  of  the  case  and  the  relief  demanded,  and  to 
the  question  whether  the  rights  of  the  defendant  or  of 
other  persons  have  been  prejudiced  by  such  delay.2  A 
delay  of  twenty  months  was  considered  no  laches  relative 
to  condemnation  proceedings.3  A  delay  of  six  years  in  ap- 
plying for  a  mandamus  to  compel  the  issue  of  a  township 
bond  for  having  volunteered  as  a  veteran  in  the  war  was 
considered  to  be  ipso  facto  too  great.4  A  delay  of  over 
three  years  before  applying  for  a  mandamus  to  levy  a  tax 
in  order  to  refund  money  paid  by  the  relator  on  an  erro- 
neous assessment  was  considered  to  be  too  great,  the  law  lim- 
iting suits  to  recover  taxes  erroneously  paid  to  three  years/ 
A  mandamus  to  compel  the  county  officers  to  remove  their 
offices  to  a  place  claimed  to  have  been  selected  at  an  elec- 
tion as  the  county  seat  was  refused,  because  the  election 
was  held  two  years  before,  and  an  injunction  had  been 
granted  then  to  prevent  a  count  of  the  vote  on  the  ground 
that  the  election  was  fraudulent.6  A  mandamus  to  make  a 
court  hear  a  complaint  against  the  erection  of  a  bridge, 
made  twenty-six  years  after  the  bridge  was  constructed, 
was  refused.7  The  writ  was  refused  for  unreasonable  delay, 
when  it  was  sought  to  compel  a  canal  company  to  enroll  in 
a  public  office  certain  contracts  for  the  purchase  of  land 

1  Walcott  v.  Mayor,  51  Mich.  249 :        2  People  v.  Syracuse  (Com.  Coun- 

Avery  v.  Krakow  (Tp.).  73  Mich,  cil),  78  N.  Y.  56 ;  Chinn  v.  Trustees, 

622  ;'  State  v.  Earle,  42  N.  J.  L.  94 :  32  Ohio  St.  236. 
Savannah  (Mayor)  v.  State,  4  Ga,        3  People  v.  Syracuse  (Com.  Coun- 

26 :  People  v.  Chapin,  104  N.  Y.  96 ;  cil),  78  N.  Y.  56. 
Gray  v.  Saginaw   Co.   (Judge),  49        *  Chinn  v.  Trustees,  32  Ohio  St. 

Mich.  628 ;  Bostwick  v.  Fire  Dept,  236. 

49  Mich.  513 ;  State  v.  Columbia,  22        5  George's  Creek,  etc.  Co.  v.  Alle- 

S.  C.  582 ;  State  v.  Knight,  31  S.  C.  ghany  Co.  (Com'rs),  59  Md.  255. 
81;  State  v.  Kirby,  17  S.  C.  563;        6  Golden  v.  Elliott,  13  Kans.  92. 
Q.  v.  All  Saints  (Ch.  Wardens),  1  Ap.        "  King  v.  Cambridgeshire  (Just.), 

Cas.  611.  1  D.  &  R  325. 
7 


98  DISCRETION    OF    COURT.  [§  88. 

after  the  company  had  been  in  possession  of  the  land  for 
sixty-five  years.1     A  delay  for  eight  years  in  demanding 
payment  of  a  claim  against  a  county  was  considered  to  jus- 
tify the  refusal  of  a  writ  of  mandamus  to  compel  payment.2 
§  88.  Discretion  of  court  when  the  state  is  relator.— 
The  discretion  of  the  court  in  granting  or  refusing  this  writ 
has   been  denied  in  cases  where  the  state  asked  for  it  in 
matters  puhlici  juris.     In  such  cases  the  writ  was  con- 
sidered to  be  purely  prerogative,  and  it  was  held  that  it 
must  be  issued  ex  debito  justitice,  and  that  the  courts  had 
no  discretion  in  the  matter.3     It  was  considered  that  the 
writ  must  issue,  as  the  absolute  right  of  the  state,  to  compel 
a  county  treasurer  to  pay  over  the  money  collected  by  him 
for  state  taxes.4  and  to  enforce  an  act  of  the  legislative  for 
the  public  benefit  on  the  application  of  the  state's  attorney.5 
In  these  decisions  the  courts  generally  refer  to  Mr.  Tap- 
ping's work  on  Mandamus.     The  authorities  cited  by  Mr. 
Tapping  in  support  of  this  proposition  do  not  sustain  his 
assertion.     The  only  authority  cited  by  him  which  alludes 
to  the  proposition  is  King  v.  Evesham,  Kel.  243,  which  is 
also  reported  as  Anon.,  2  Barn.  236.     There  it  is  said  that 
that  writ  is  a  writ  of  right,  and  when  the  party  has  suffi- 
cient matter  before  the  court,  he  is  entitled  to  it  de  jure  or 
ex  debito  justitice.    That  case  seems  to  have  been  prosecuted 
by  the  parties  in  interest  and  not  by  the  attorney-general. 
Since  now  in  this  country  the  writ  of  mandamus  is  looked 
upon  rather  as  a  writ  of  right,  and  the  limitations  and  rules  ' 
regulating  the  discretion  of  the  court  in  refusing  the  writ 
are  well  defined,  it  would  seem  that  the  application  of  a 
state's  attorney  for  the  writ  should  be  subject  to  the  same 
rules  which  apply  in  other  cases,  since  the  state's  attorney 
may  interfere  in  all  cases,  for  the  writ,  as  a  general  rule, 
only  issues  in  matters  of  public  right. 

i  Q.  v.  Leeds  &  Co.,  11  A.  &  E.  316.  4  Apliu  v.  Van  Tassel,  73  Mich.  28. 

2  State  v.  Appleby,  25  S.  C.  100.  »New  Haven,  etc.  R.  R.  v.  State, 

3  State    v.   Doyle,  40    Wis.   220 ;  44  Conn.  376. 
Att'y-Gren'l  v.  Chicago,  etc.  R  R, 

35  Wis.  425. 


CHAPTER  7. 

MANDAMUS  AGAINST  THE  STATE. 

§  89.  Cannot  obtain  a  mandamus  indirectly  by  obtaining  one  against  an 
officer. 
90.  When  the  writ  goes  against  the  officers  to  enforce  a  liability  of  the 
state. 

§  89.  Cannot  obtain  a  mandamus  indirectly  by  obtain- 
ing one  against  an  officer. —  In  England  it  is  well  settled 
law  that  the  writ  of  mandamus  will  not  run  against  the 
sovereign.  The  reasons  assigned  for  this  ruling  are,  that  it 
is  incongruous  for  the  sovereign  to  command  himself  to  do 
an  act,  and  because  in  case  of  disobedience  the  command 
of  the  writ  is  enforced  by  attachment  of  the  person.1  In 
America  the  same  conclusion  is  reached,  but  the  reason 
therefor  is  because  no  suit  can  be  brought  against  a  state, 
unless  it  consents  thereto.2  In  neither  country  will  litigants 
be  allowed  to  evade  this  rule,  and  the  writ  of  mandamus 
will  not  be  allowed  to  run  against  the  servants  of  the  crown 
or  state,  as  such,  in  order  to  enforce  the  satisfaction  of 
claims  upon  the  crown  or  state.3  The  writ  cannot  be  used 
to  make  a  contract  which  will  bind  the  state,4  as  to  com- 
pel the  executive  council  to  contract  with  the  relator,  as 
the  lowest  bidder,  to  publish  the  state  reports;5  nor  can 
it  be  used  to  compel  a  state  to  fulfill  its  contract,6  as  to 

>  Q.  v.  Powell,  1  Q.  B.  351 ;  R  v.  R.   7  Q.   B.   387 ;    Cunningham  v. 

Customs  (Com'rs),  5  A.  &  E.  380.  Macon,  etc.  R  R,  109  U.  S.  446 ; 

2  Ottawa  Co.  (Sup'rs)  v.  Auditor-  State  of  Miss.  v.  Durham,  15  Disk 
Gen.,  69  Mich.   1 ;  Aplin  v.  Grand  CoJ.  235. 

T.    Co.,   73  Mich.    182;    People   v.  <  Chance  v.  Temple,  1  Iowa.  179. 

Dulaney,  96  111.  503 ;  State  v.  Burke,  5  Mills  Pub.  Co.  v.  Larrabee.  78 

33  La.  An.  498.  Iowa,  97. 

3  De  Bode,  In  re,  6  Dow].  776 ;  Q.  «  Ayers,  In  re,  123  U.  S.  443,  503 ; 
v.  Lords  Com'rs  of  the  Treasury,  L.  People  v.  Dulaney,  96  111.  503. 


100  MANDAMUS    AGAINST    THE    STATE.  [§  89. 

compel  the  secretary  of  state  to  deliver  copies  of  certain 
laws  to  the  public  printer  to  print,  when  by  subsequent  stat- 
ute the  printing  thereof  is  to  be  let  to  the  lowest  bidder.1 
The  writ  has  been  denied,  as  being  indirectly  a  suit  against  the 
state:  to  compel  the  commissioner  of  the  state  general  land 
office  to  issue  patents  for  the  state  lands  without  paying  the 
fees  due  to  the  state  therefor;2  to  make  state  officers  pay 
out  money  in  the  absence  of  an  appropriation,3  and  of  a  war- 
rant ; 4  to  compel  the  auditor-general  to  pay  over  to  a  county 
treasurer  the  proceeds  of  certain  taxes  collected  by  him ; 5 
and  to  compel  the  state  treasurer  and  auditor  to  audit  and 
pay  certain  coupons  according  to  a  statute  after  the  pas- 
sage of  a  subsequent  statute,  which  appropriated  the  funds 
to  another  purpose.fi  The  courts  are  not  authorized,  when 
a  state  cannot  be  sued,  to  set  up  their  jurisdiction  over  offi- 
cers in  charge  of  the  public  moneys  so  as  to  control  them 
as  against  the  political  power  in  their  administration  of  the 
finances  of  the  state.  The  officers  owe  duty  to  the  state 
alone.  They  can  only  act  as  the  state  directs  them  to  act, 
and  hold  as  the  state  allows  them  to  hold.  They  can  be 
moved  through  the  state,  but  not  the  state  through  them.7 
Where  a  mandamus  was  applied  for  to  compel  a  county  to 
levy  a  tax  to  pay  its  indebtedness  to  the  state,  and  in  another 
case  to  compel  a  county  treasurer  to  pay  over  money  col- 
lected by  him  for  the  state,  the  county  was  not  allowed  to 
assert  a  set-off  against  the  state,  because  the  state  could  not 
be  sued  directly  or  indirectly.8  A  mandamus  was  sought 
to  compel  the  admission  to  a  customary  or  copyhold  estate. 
Such  writs  were  formerly  brought  against  the  steward 
alone,  but  the  court  had  ruled  that  the  writ  must  also  run 
against  the  lord  of  the  manor  in  order  more  effectually  to 
protect  his  rights.     In  this  case  the  queen  was  the  lord  of 

i  Marshall  v.  Clark,  22  Tex.   23.  5  Ottawa  Co.  v.  Auditor-Gen.,  69 

Contra  in  State  v.  Barker,  4  Kans.  Mich.  1. 

379,  wherein  only  the  inviolability  6  State  v.  Burke,  33  La.  An.  498. 

of  a  contract  is  considered.  "<  Louisiana  v.  Juniel,  107  U.  S.  711. 

2  Taylor  v.  HaU,  71  Tex.  206.  SAplin  v.  Van  Tassel,  73  Mich. 

» Carr  v.  State,  127  Ind.  204.  28 ;   Aplin  v.  Grand  Traverse  Co. 

*  Weston  v.  Dane,  51  Me.  461.  (Sup'rs),  73  Mich.  182. 


§  90.]  MANDAMUS    AGAINST    THE    STATE.  101 

the  manor.  The  relator  sought  to  have  the  writ  run  to  the 
steward  alone.  The  court  stated  that,  if  the  writ  were 
obeyed  when  issued  to  the  steward  alone,  the  property  of  the 
crown  would  be  indirectly  affected,  and  that  the  crown  was 
as  much  entitled  to  protection  as  a  subject.  The  writ  was 
therefore  refused,  since  it  could  not  issue  against  the  sov- 
ereign.1 

§  CJ0.  When  the  writ  goes  against  the  officers  to  en- 
force a  liability  of  the  state. —  It  does  not,  however,  fol- 
low that  this  writ  is  never  issued  to  compel  the  performance 
of  a  ministerial  act  connected  with  the  liabilities  of  the 
government.  There  are  cases  when  the  writ  will  so  issue, 
yet  they  must  be  where  the  government  itself  is  liable  and 
is  willing  to  pay  its  debt,  but  the  officer  himself  has  im- 
properly refused  to  act.2  "Where  money  was  appropriated 
to  pay  the  arrears  of  the  relator's  pension,  and  the  lords  of 
the  treasury  admitted  to  him  they  had  the  money  appropri- 
ated for  him,  a  mandamus  was  issued  against  them  to  com- 
pel them  to  issue  an  order  therefor  in  the  relator's  favor. 
They  were  officers  of  the  crown,  but  this  was  only  the  case 
of  public  officers  having  control  of  a  sum  of  money  for  a 
particular  purpose.3  When  such  officers  act  merely  as  serv- 
ants of  the  crown,  amenable  alone  to  the  crown,  owing  no 
duty  to  the  relator,  the  writ  is  refused.  Where  the  lords 
commissioners  of  the  treasury  had  received  the  money  to 
pay  the  costs  of  criminal  prosecutions,  they  were  not  re- 
quired to  pay  certain  items  of  a  criminal  prosecution.4 
Where  the  amount  appropriated  to  pay  a  pension  was 
thrown  into  the  general  fund  applicable  to  other  accounts, 
and  never  reached  the  lords  commissioners  of  the  treasury 
for  the  purpose  of  paying  that  pension,  a  mandamus  to 
compel  them  to  use  it  to  pay  that  pension  wras  refused.5 

1  Q.  v.  Powell,  1  Q.  B.  351.  *  Q.  v.  Lords  Com'rs  of  the  Treas- 

2  Reeside  v.  Walker,  11  How.  272 ;     ury,  L.  R.  7  Q.  B..387. 

Chance  v.  Temple,  1  Iowa,  179.  8  King  v.   Lords  Com'rs  of  the 

3  King  v.   Lords   Com'rs  of  the    Treasury,  4  A.  &  E.  984. 
Treasury,  4  A.  &  E.  286. 


CHAPTER  8. 

MANDAMUS  TO  THE  EXECUTIVE  OFFICERS  OF  THE  GOVERN- 
MENT. 

§  91.  The  three  co-ordinate  independent  branches  of  the  government 

92.  Mandamus  to  the  president  of  the  United  States. 

93.  Mandamus  to  the  governor  of  a  state. 

94.  Mandamus  refused  against  the  governor  of  a  state. 

95.  A  case  wherein  decided  that  the  writ  would  not  issue  against  a 

governor. 

96.  Case  where  it  was  decided  that  a  governor  is  amenable  to  this  writ. 

97.  Deductions  from  the  decisions. 

98.  Mandamus  to  the  governor  of  a  state  from  a  federal  court. 

99.  Mandamus  to  other  executive  officers. 

100.  Mandamus  to  heads  of  federal  executive  departments. 

101.  Cases  of  mandamus  to  heads  of  federal  executive  departments. 

102.  Mandamus  to  the  secretaries  of  state  of  the  various  states. 

103.  Mandamus  to  a  state  treasurer. 

104.  Mandamus  to  the  comptroller  of  a  state. 

105.  Mandamus  to  the  auditor  of  a  state. 

106.  Mandamus  to  commissioner  of  state  land  office. 

§  91.  The  three  co-ordinate  independent  branches  of 
the  government. —  In  the  constitutions  of  the  several  states, 
and  in  that  of  the  United  States,  the  powers  of  government 
are  divided  between  three  departments, —  the  legislative, 
judicial  and  executive.  One  department  enacts  the  laws, 
another  interprets  them,  and  the  third  enforces  them. 
These  departments  are  co-ordinate  branches  of  the  govern- 
ment, entirely  independent  of  each  other,  and  each  is  su- 
preme in  its  own  domain.  It  then  became  important  to 
determine  to  what  extent  the  judiciary  department  could 
interfere  in  the  operations  of  the  other  departments  by  the 
use  of  the  writ  of  Mandamus.  While  on  the  one  hand  it  is 
claimed  that  the  judiciary  must  be  supreme  in  the  deter- 
mination of  all  questions  which  come  before  it  in  the  course 


§§  02,  93.]        MANDAMUS   TO    EXECUTIVE   OFFICERS.  103 

of  legal  proceedings,  yet  on  the  other  it  is  asserted  that  the 
other  departments,  being  supreme  in  their  spheres  of  action, 
cannot  be  controlled  by  the  judiciary,  nor  can  the  judiciary 
direct  them  or  supervise  them  in  the  performance  of  their 
duties. 

§  92.  Mandamus  to  the  president  of  the  United  States.— 
At  an  early  period  in  the  history  of  this  country  the  su- 
preme court  of  the  United  States,  which  in  such  cases  is  the 
final  judicial  arbiter,  determined  that  the  president  of  the 
United  States,  so  far  as  his  powers  are  derived  from  the  con- 
stitution, is  beyond  the  reach  of  any  other  department  ex- 
cept the  impeaching  power ;  that  his  powers  are  political,  and 
in  the  exercise  thereof  he  is  to  use  his  own  discretion,  and 
is  accountable  only  to  his  country  in  his  political  character 
and  to  his  own  conscience.1  As  a  consequence  of  these  de- 
cisions, no  one  has  ever  sought  to  obtain  a  mandamus 
against  the  president  of  the  United  States. 

§  93.  Mandamus  to  the  governor  of  a  state.—  The  gov- 
ernors of  the  various  states  occupy  a  position  similar  to  that 
of  the  president  of  the  United  States,  being  the  heads  of 
the  executive  departments  of  their  respective  states,  and 
the  constitutions  of  the  various  states  generally  specifically 
state,  which  the  United  States  constitution  does  not,  that 
the  legislative,  judicial  and  executive  departments  shall  be 
distinct  and  independent  of  each  other,  and  that  the  offi- 
cers of  one  department  shall  execute  none  of  the  duties  of 
either  of  the  other  departments.  As  might  be  expected, 
the  rulings  of  the  various  state  supreme  courts  are  not  in 
harmony  on  the  question  whether  a  mandamus  can  be  is- 
sued to  a  state  governor.  Those  courts  which  grant  the 
writ  against  the  state  governor  claim  that  the  judiciary  is 
supreme  in  its  domain,  and  that  therefore  the  authority  of 
the  judiciary  is  supreme  in  the  determination  of  all  legal 
questions  involved  in  any  matter  judicially  brought  before 
it;2  that  the  law  exempts  no  one  from  the  operation  of  the 

iMarbury  v.  Madison.  1  Cranch,        2  people  v.  Brooks,  16  Cai  11. 
137;  Kendall  v.  United  States,  12 
Pet.  524, 


104  MANDAMUS   TO    EXECUTIVE    OFFICERS.  [§  93. 

writ  of  mandamus;  that  the  governor  is  specially  sworn  to 
enforce  the  laws  faithfully ;  and  that  if  the  writ  were  re- 
fused, in  many  cases  persons  would  be  deprived  of  their 
rights  without  the  possibility  of  obtaining  any  redress.1 
Therefore  it  has  been  held  that  the  writ  will  issue  to  a 
governor  to  perform  any  ministerial  duty.2     The  writ  has 
been  issued  to  a  governor  to  administer  the  oath  of  office 
to  officers-elect,  and  to  issue  to  them  their  commissions,  as 
being  merely  ministerial  duties,  though  imposed  by  the  state 
constitution.3     The  performance  of  the  following  duties 
imposed  on  the  governor  by  statute  was  enforced  by  man- 
damus, viz. :  the  commissioning  of  the  clerk  of  a  court,4  the 
issuance  of  a  warrant  for  the  attorney-general's  salary,5 
the  auditing  of  an  officer's  claim  for  expenses  in  returning 
a  prisoner  to  the  territory,6  the  commissioning  of  officers 
chosen  by  the  legislature,7  the  issuance  of  state  bonds  to 
a  railroad  company,8  the  authentication  of  a  bill  in  his  pos- 
session as  a  statute,9  and  the  issuance  of  a  proclamation  that 
a  bank  was  authorized  to  begin  business.10    A  duty  imposed 
by  statute  on  a  governor,  which  might  as  well  have  been 
imposed  on  any  other  officer,  was  considered  to  be  minis- 
terial and  enforceable  by  mandamus,11  such  as  the  signing 
of  a  patent  for  land.5     A  duty  which  the  governor  was  re- 
quired to  perform  with  others,  who  had  equal  powers  therein 
with  him,  has  been  held  not  to  be  a  duty  growing  out  of 
his  official  position,  and  therefore  the  writ  would  run  against 
him,  as  in  the  case  of  any  other  party  upon  whom  public 

i  State  v.  Martin,  38  Kans.  641.  6  Tennessee  R.   R.   v.   Moore,    36 

2  State  v.  Martin,  38  Kans.  641 ;  Ala.  371.  In  this  state  it  was  sub- 
Chumasero  v.  Potts,  2  Mont.  242 ;  sequently  doubted  whether  a  man- 
State  v.  Thayer  (Neb.,  Jan.  2,  1891),  damus  should  issue  in  any  case  to 
47  N.  W.  Rep.  704.  the    governor.      Chisholm    v.  Mc- 

3  Magruder  v.  Swan,  25  Md.  173 ;  Gehee,  41  Ala.  192. 

Groome  v.  Gwin,  43  Md.  572.  *>Harpending  v.  Haight,  39  Cal. 

*  Bonner  v.  State,  7  Ga.  473.  189. 

5  Cotten  v.  Ellis,  7  Jones,  545.  10  State  v.  Chase,  5  Ohio  St.  528. 

6  Territory  v.  Potts,  3  Mont.  364.  n  People  v.  Brooks,   16   Cal.    11; 
■State  v.   Moffitt,   5    Ohio,   358;  State  v.  Drew,  17  Fla.  67. 

Baker  v.  Kirk,  33  Ind.  517.  12  Middleton  v.  Low,  30  Cal.  596. 


§  9i.]  MANDAMUS    TO    EXECUTIVE    OFFICEKS.  105 

duties  devolved.  Thus  he  has  been  required  to  meet  with 
certain  officials  and  to  canvass  the  votes  cast  for  a  certain 
office.1  The  writ  has  been  issued  to  control  the  action  of  a 
board  of  which  the  governor  as  such  was  a  member,  relative 
to  certain  state  bonds.2 

§  94.  Mandamus  refused  against  the  governor  of  a 
state. —  On  the  other  hand  a  larger  number  of  state  courts 
hold  that  the  writ  of  mandamus  will  never  run  against  the 
governor  of  a  state,  assigning  as  reasons  for  such  ruling 
political  necessity  and  public  policy,3  regardless  of  whether 
duty  be  imposed  upon  him  by  the  state  constitution4  or  by 
statute.5  It  is  considered  to  be  immaterial  that  the  duty 
might  have  been  imposed  on  another  person,  since  it  is  im- 
posed on  the  governor  eo  nomine,  and  its  performance  is  an 
executive  act  under  the  responsibility  of  his  executive  sta- 
tion and  under  the  sanctity  of  his  official  oath.6  The  rea- 
sons assigned  for  not  issuing  a  mandamus  to  a  governor 
are,  that  such  action  would  imply  that  the  executive  power 
is  dependent  on  and  inferior  to  the  judiciary;7  that  such 

1  State  v.  Thayer  (Neb.,  Jan.  2,  Hartranf  t's  Appeal.  85  Pa.  St  433 ; 
1891),  47  N.  W.  Rep.  704;  State  v.  Directors  (Board)  v.  Wolfley  (Ariz.). 
Foster,  38  Ohio  St  599.  22  Pac.   R,   383 ;    People  v.   State 

2  Gray  v.  State,  72  Ind.  567 ;  Hovey  Auditors  (Board),  42  Mich.  422; 
v.  State,  127  Ind.  588.  The  rule  People  v.  Yates,  40  111.  126 ;  People 
adopted  in  Indiana  is,  that  the  writ  v.  Bissell,  19  111.  229 ;  People  v. 
will  not  run  in  any  case  against  the  Hatch,  33  I1L  9;  Bates  v.  Taylor, 
governor  relative  to  his  action  as  87  Tenn.  319 ;  State  v.  Towns,  8  Ga. 
such.  In  another  state,  where  it  is  360 ;  Vicksburg  R.  R  v.  Lowry,  61 
held    that  the  writ    never    issues  Miss.  102. 

a  ainst  the  governor,   it  was   re-  4  State  v.    Governoi',  25  N.  J.  L. 

fused  against  the  board  of  which  331 ;  Mauran  v.  Smith,  8  R  I.  192. 

he  was  a  member.     Since  he  was  a  5  People  v.   Governor,   29   Mich, 

member  of  the  board  by  virtue  of  320 ;  Rice  v.  Austin,  19  Minn.   103. 

his  office,  his  acts  therewith  were  6  Dennett,  Petitioner,  32  Me.  508 ; 

considered  to  be  acts  virtute  officii  Turnpike    Co.   v.  Brown,  8    Baxt 

and  exempt  from  judicial  control.  490;  State  v.  Whitcomb,  28  Minn. 

State  v.  Board  of  Liquidation,  42  50;  People  v.  Governor,  29  Mich. 

La.  An.  647.  320. 

3  Hawkins  v.  Governor,  1  Ark.  7  State  v.  Governor,  39  Mo.  388 ; 
570;  People  v.  Cullom,  100  111.  472;  State  v.  Drew,  17  Fla.  67;  Mauran 
State    v.   Governor,   39    Mo.    388 ;  v.  Smith,  8  R  L  192. 


106  MANDAMUS   TO    EXECUTIVE    OFFICERS.  [§  95. 

action  would  tend  to  bring  the  two  departments  into  a  con- 
flict, wherein  the  court  would  have  no  ability  to  enforce  its 
decrees,  and  such  a  result  should  be  considered  in  a  case 
where  the  right  to  issue  the  writ  is  doubtful,1  and  courts  in 
such  matters  should  not  tread  on  doubtful  ground  ;2  that 
the  punishment  for  disobedience  of  the  writ  is  by  a  pro- 
ceeding for  contempt,  and  since  the  court  cannot  deprive 
the  state  of  its  head,  therefore  it  has  not  the  power  to  issue 
this  writ  to  the  governor; 3  that  the  state  constitution  ex- 
pressly provides  that  one  department  shall  not  exercise  any 
of  the  duties  of  either  of  the  other  departments,4  and  that 
the  governor  has  a  right  to  determine  for  himself  what 
duties  he  is  required  to  perform,  and  therefore  has  a  right 
to  determine  what  duties  are  discretionary  and  what  are  min- 
isterial, and  consequently  the  courts  have  no  right  to  deter- 
mine that  matter  for  him.5  When  a  governor  voluntarily 
submitted  himself  to  the  jurisdiction  of  the  court,  the  court 
proceeded  to  adjudge  the  matter;6  but  in  another  case  the 
court  said  the  governor  might  submit  the  case  in  order  to 
obtain  the  court's  advice,  but  it  disclaimed  any  right  to  con- 
trol his  action ; "  and  in  another  case  it  was  decided  that  this 
exemption  from  any  interference  by  the  judiciary  was  es- 
tablished as  a  protection  to  the  office,  and  that  the  incum- 
bent was  not  allowed  to  waive  it.8 

§  95.  A  case  wherein  decided  that  the  writ  would  not 
issue  against  a  governor. —  The  whole  question  is  well 
considered  in  People  v.  Governor,  29  Mich.  320,  where 
Cooley,  J.,  in  delivering  the  opinion  of  the  court,  says : 

"  There  is  no  very  clear  and  palpable  line  of  distinction 
between  those  duties  of  the  governor  which  are  political, 

i  Mauran  v.   Smith,  8  R.   I.   192 ;  50 ;  Bledsoe  v.  International  R  R. 

State  v.  Governor,  39  Mo.  388.  40  Tex.  537 ;  Iiovey  v.  State,   127 

2  State  v.  Governor,  25  N.  J.  L.  Ind.  588. 

331.  5  State  v.  Warmoth,  22  La.  An.  1 ; 

* State  v.  Drew,  17  Fla.  67.  Hartranf  t's  Appeal.  85  Pa.  St.  433. 

4  State    v.    Dike,   20    Minn.   363;  «  State  v.  Marks,  74  Tenn.  12. 

Western  R  R  v.  De  Graff,  27  Minn.  '  People  v.  Bissell,  19  111.  229. 

1;    State  v.   Whitcomb,   28   Minn.  estate  v.  Dike,  20  Minn.  363. 


§  95.]  MANDAMUS    TO    EXECUTIVE    OFFICERS.  107 

and  those  which  are  to  be  considered  ministerial  merely ; 
and  if  we  could  undertake  to  draw  one,  and  to  declare  that 
in  all  cases  falling  on  one  side  the  line  the  governor  was 
subject  to  judicial  process,  and  in  all  falling  on  the  other  he 
was  independent  of  it,  we  should  open  the  doors  to  an  end- 
less train  of  litigation,  and  the  cases  would  be  numerous  in 
which  neither  the  governor  nor  the  parties  would  be  able 
to  determine  whether  his  conclusion  was  under  the  law  to 
be  final,  and  the  courts  would  be  appealed  to  by  any 
dissatisfied  party  to  subject  a  co-ordinate  department  of 
the  government  to  their  jurisdiction.  However  desirable 
a  power  in  the  judiciary  to  interfere  in  such  case  might 
seem  from  the  stand-point  of  interested  parties,  it  is  mani- 
fest that  harmony  of  action  between  the  executive  and  ju- 
dicial departments  would  be  directly  threatened,  and  that 
the  exercise  of  such  power  could  only  be  justified  on  most 
imperative  reasons.  .  .  .  The  presumption  in  all  cases 
must  be,  where  a  duty  is  devolved  upon  the  chief  executive 
of  the  state  rather  than  upon  an  inferior  officer,  that  it  is 
so  because  his  superior  judgment,  discretion  and  sense  of 
responsibility  were  confided  in  for  a  more  accurate,  faith- 
ful and  discreet  performance  than  could  be  relied  upon  if 
the  dut}7  was  devolved  upon  an  officer  chosen  for  inferior 
duties.  .  .  .  Our  government  is  one  whose  powers  have 
been  carefully  apportioned  between  three  distinct  depart- 
ments, which  emanate  alike  from  the  people,  have  their 
powers  alike  limited  and  defined  by  the  constitution,  are 
of  equal  dignity,  and  within  their  respective  spheres  of  ac- 
tion equally  independent.  .  .  .  This  division  is  ac- 
cepted as  a  necessity  in  all  free  government,  and  the  very 
apportionment  of  power  to  one  department  is  understood 
to  be  a  prohibition  of  its  exercise  by  either  of  the  others. 
"It  is  not  attempted  to  be  disguised  on  the  part  of  the 
relators  that  any  other  course  than  that  which  leaves  the 
head  of  the  executive  department  to  act  independently  in 
the  discharge  of  his  duties  might  possibly  lead  to  unseemly 
conflicts,  if  not  to  something  worse,  should  the  courts  un- 


108  MANDAMUS   TO    EXECUTIVE    OFFICERS.  [§  95. 

dertake  to  enforce  their  mandates  and  the  executive  refuse 
to  obey.     .     .     .     Orders  in  these  cases  can  only  be  en- 
forced by  process  for  the  punishment  of  contempts  of  court, 
and  it  is  conceded  that  the  governor  might  submit,  or  not, 
at  his  option;  so  that  our  decision  in  effect  could  be  only 
advisory.     And   while  we  should  concede,  if  jurisdiction 
were  plainly  vested  in  us,  the  inability  to  enforce  our  judg- 
ment would  be  no  sufficient  reason  for  failure  to  pronounce 
it,  especially  against  an  officer  who  would  be  presumed  ready 
and  anxious  in  all  cases  to  render  obedience  to  the  law,  yet 
in  a  case  where  jurisdiction  is  involved  in  doubt  it  is  not 
consistent  with  the  dignity  of  the  court  to  pronounce  judg- 
ments which  may  be  disregarded  with  impunity,  nor  with 
that  of  the  executive  to  place  him  in  position    where,  in  a 
matter  within  his  own  province,  he  must  act  contrary  to 
his  judgment  or  stand  convicted  of  a  disregard  of  the  laws. 
"  But  it  is  said  that  this  conclusion  will  leave  parties,  who 
have  rights,  in  many  cases  without  remedy.     Practically, 
there  are  a  great  many  such  cases,  but  theoretically  there 
are  none  at  all.     All  wrongs  certainly  are  not  redressed  by 
the  judicial  department.     A  party  may  be  deprived  of  a 
right  by  a  wrong  verdict  or  an  erroneous  ruling  of  a  judge, 
and  though  the  error  may  be  manifest  to  all  others  than 
those  who  are  to  decide  upon  his  rights,  he  will  be  without 
redress.     A  person  lawfully  chosen  to  the  legislature  may 
have  his  seat  given  by  the  house  to  another,  and  be  thus 
wronged  without  remedy.     A  just  claim  against  the  state 
may  be  rejected  by  the  board  of  auditors,  and  neither  the 
governor  nor   the  courts  can  grant   relief.     A   convicted 
person  may  conclusively  demonstrate  his  innocence  to  the 
governor  and  still  be  denied  a  pardon.     In  which  one  of 
these  cases  could  the  denial  of  redress  by  the  proper  tri- 
bunal constitute  any  ground  for  interference  by  any  other 
authority?     The  law   must  leave  the  final  decision  upon 
every  claim  and  every  controversy  somewhere,  and  when 
that  decision  has  been  made,  it  must  be  accepted  as  correct. 
The  presumption  is  just  as  conclusive  in  favor  of  executive 


§  96.]  MANDAMUS    TO    EXECUTIVE    OFFICERS.  109 

action  as  in  favor  of  judicial.  The  party,  applying  for  ac- 
tion which,  under  the  constitution  and  laws,  depends  on  the 
executive  discretion,  or  is  to  be  determined  by  the  exec- 
utive judgment,  if  he  fails  to  obtain  it,  has  sought  the  proper 
remedy  and  must  submit  to  the  decision." 

§  96.  Case  where  it  was  decided  that  a  governor  is 
amenable  to  this  writ. —  The  opposite  view  of  this  ques- 
tion is  vigorously  maintained  in  Martin  v.  Ingham,  38  Kans. 
641,  where  Valentine,  J.,  in  delivering  the  opinion  of  the 
court,  says:  "It  is  generally  supposed  that  in  a  republican 
government  all  men  are  subject  to  the  laws,  and  to  the  due 
administration  of  them,  and  that  no  man  nor  any  class  of 
men  is  exempt.  There  is  no  express  provision  in  the 
constitution,  nor  in  any  statute,  exempting  any  member 
of  the  executive  department,  chief  or  otherwise,  from 
being  sued  in  any  of  the  courts  of  Kansas,  or  in  any  action 
coming  within  the  jurisdiction  of  any  particular  court,  civil 
or  criminal,  upon  contract  or  upon  tort,  in  quo  vjarrant<>1 
habeas  corpus,  mandamus,  or  injunction;  or  from  being- 
liable  to  any  process  or  writ  properly  issued  by  any  court, 
as  subpoenas,  summonses,  attachments,  and  other  writs 
or  process;  and  if  any  one  of  such  officers  is  exempt  from 
all  kinds  of  suits  in  the  courts,  and  from  all  kinds  of  process 
issued  by  the  courts,  it  must  be  because  of  some  hidden  or 
occult  implications  of  the  constitution  or  the  statutes,  or 
from  some  inherent  and  insuperable  barriers  founded  in  the 
structure  of  the  government  itself,  and  not  from  the  express 
provisions  of  the  constitution  or  the  statutes.  ...  In 
all  other  cases  it  is  not  the  rank  or  character  of  the  indi- 
vidual officer,  but  the  nature  of  the  thing  to  be  done  which 
governs.  No  other  officer  is  above  the  law ;  and  every  other 
officer,  to  whatever  department  he  may  belong,  may  be 
compelled  to  perform  a  purely  ministerial  duty.  The  objec- 
tion oftenest  urged  against  the  court's  exercising  control 
over  any  of  the  acts  of  the  governor  is  that  the  three  depart- 
ments of  government,  the  legislative,  the  judicial,  and  the 
executive,  are  separate  and  distinct,  and  that  each  is  equal 


110  MANDAMUS    TO    EXECUTIVE    OFFICERS.  [§  90. 

to,  co-ordinate  with,  and  wholly  independent  of,  the  other. 
Now  it  is  true,  with  some  exceptions,  that  the  legislature 
cannot  exercise  judicial  or  executive  power,  and  that  the 
executive  department  cannot  exercise  legislative  or  judicial 
power;  but  it  is  not  true  that  they  are  entirely  sepa- 
rate from  each  other  or  independent  of  each  other,  or  that 
one  of  them  may  not  in  some  instances  control  one  of  the 
others.  The  most  of  the  jurisdiction  possessed  by  the  courts 
depends  entirely  upon  the  acts  of  the  legislature,  and  the 
entire  procedure  of  the  courts,  civil  and  criminal,  is  pre- 
scribed by  the  legislature.  Nearly  all  the  duties  of  the 
governor  are  imposed  upon  him  by  the  legislature.  The 
legislature  may  also  impeach  the  governor  or  any  other 
state  or  judicial  officer  mentioned  in  the  constitution.  The 
courts  may  construe  all  the  acts  of  the  legislature,  whether 
such  acts  have  been  signed  by  the  governor  or  not,  and 
may  determine  whether  they  are  in  contravention  of  the 
constitution  or  not,  and  if  believed  to  be  in  contravention 
of  the  constitution,  may  hold  them  void.  The  courts  may 
also  determine  that  a  supposed  member  of  the  legislature  is 
not  a  member  at  all,  because  he  represents  no  district;  and 
may  also  determine  that  the  legislature  cannot  consist  of 
more  than  a  certain  number  of  members.  Prouty  v.  Stover, 
Lieut.  Governor,  11  Kans.  235;  The  State  ex  rel.  v.  Tomlin- 
son,  20  id.  692;  The  State  ex  rel.  v.  Francis,  Treas.,  26  id. 
724.  The  courts  may  also  pass  upon  the  validity  of  the 
acts  of  the  governor.  The  State  v.  Ford  County,  12  Kans. 
441.  It  is  also  believed  that  the  courts  have  power  to  re- 
quire the  governor  to  attend  a  trial  as  a  witness;  and  if  so, 
then  have  they  not  the  further  power  to  imprison  him  for 
contempt  if  he  disobeys?  And  if  so,  would  not  the  courts 
then  interfere  with  his  ability  to  perform  his  executive 
duties?  In  such  a  case  the  state  might  have  to  rely  upon 
the  lieutenant-governor.  No  act  of  the  legislature  can  be- 
come a  law  unless  it  is  presented  to  the  governor  for  his 
signature  and  approval.  The  governor  may  also  convene 
the  legislature  whenever  he  chooses.     Also  the  legislature 


§96.]  MANDAMUS    TO    EXECUTIVE    OFFICERS.  HI 

and  the  courts  are  able  to  perform  their  respective  duties 
unmolested,  because  of  the  known  power  of  the  governor 
to  call  out  the  militia  to  aid  and  protect  them  in  doing  so 
if  necessary.     It  will  be  seen  from  the  foregoing  that  the 
different  departments  of  the  government  are  not  independ- 
ent of  each  other.     The  power  last  mentioned,  however,  is 
also  invoked  as  an  argument  against  the  court's  attempting 
to  control  any  act  or  acts  of  the  governor.     It  is  said  that  if 
the  governor  opposes  the  order  or  judgment  of  the  court, 
it  cannot  be  enforced ;  for  it  is  said  that  he  has  the  entire 
control  of  the  militia,     But  are  the  courts  to  anticipate  that 
the  governor  may  not  perform  his  duties?     Should  not  the 
courts  rather  presume  that  when  a  controversy  is  deter- 
mined by  the  courts  —  the  only  tribunals  authorized  by  the 
constitution    or  the  statutes  to  construe  the  laws,  and  to 
determine  controversies  by  way  of  judicial  determination  — 
the  governor,  as  chief  executive  officer  of  the  state,  would 
see  that   such  determination  should  be  carried  into  full 
effect?     Such  would  be  his  duty,  and  no  one  should  suppose 
that  he  would  fail  to  perform  his  duty,  when  his  duty  is 
made  manifest  by  a  judicial  determination  of  the  courts. 
No  department  should  ever  cease  to  perform  its  functions 
for  fear  that  some  other  department  may  render  its  acts 
nugatory,  or  for  fear  that  its  acts  may  in  some  manner 
affect  the  conduct  or  status  of  some  other  department.  .  .    . 
Each  department  should  scrupulously  perform  the  duties 
peculiarly  intrusted  to  its  own  department  without  refer- 
ence to  how   the  same  might  affect  other  departments. 
Besides,  if  this  argument  from  the  governor's  control  of 
the  militia  were  carried  to  its  full  extent,  it  would  prevent 
any  court  from  ever  issuing  any  subpoena  or  any  other  writ 
or  process  to  the  governor,  or  from  ever  arresting  him  or 
ordering  his  arrest  for  any  assault  or  battery,  or  for  any- 
thing else,  because  the  governor  might  in  any  such  case  re- 
fuse to  obey  the  writ  or  the  order  of  the  court,  and  might 
call  on  the  militia  to  assist  him  in  his  resistance.    ...    It 
will  thus  be  seen  that  while  each  of  the  different  depart- 


112  MANDAMUS    TO    EXECUTIVE    OFFICERS.  [§  97. 

merits  of  the  government  is  superior  to  the  others  in  some 
respects,  yet  that  each  is  inferior  to  the  others  in  other 
respects;  and  it  is  always  difficult  to  compare  things  which 
are  wholly  unlike  each  other,  or  to  call  them  equal.  Each 
department  in  its  own  sphere  is  supreme.  But  each  out- 
side of  its  own  sphere  is  weak  and  must  obey.  ...  If 
an  applicant  for  relief  on  the  ground  of  the  refusal  to  exer- 
cise or  the  wrongful  exercise  of  ministerial  power  by  the 
governor  has  no  leinedy  in  the  courts,  then  he  has  no 
remedy  at  all.  The  remedy  of  impeachment,  and  the 
remedy  of  subsequent  elections,  suggested  by  some  of  the 
courts,  may  be  a  remedy  to  the  public  in  general,  but  it 
cannot  be  a  remedy  to  an  individual  sufferer  for  injuries  or 
loss  in  person  or  to  his  property." 

§  97.  Deductions  from  the  decisions.—  The  weight  of 
authority  is  evidently  in  favor  of  the  proposition  that  the 
writ  of  mandamus  will  never  lie  from  a  state  court  to  the 
governor  of  the  state,  but  such  proposition  can  hardly  be 
considered  to  be  established  on  the  ground  of  constitutional 
prohibition,  and  it  will  be  perceived,  when  we  consider  the 
riffht  of  courts  to  issue  this  writ  to  the  heads  of  the  vari- 
ous  branches  of  the  executive  department,  that  the  constitu- 
tional inhibition  is  maintained  in  only  two  of  the  states.    But 
it  seems  to  be  impossible  to  preserve  an  isolation  between 
the  three  departments.     To  do  so  all  the  officers  and  agents 
of  the  executive  department  should  be  free  from  all  judicial 
control.     But  the  courts  are  continually  restraining  and  di- 
recting the  actions  of  the  executive  officers,  and  they  often 
nullify  the  action  of  the  governor,  which  is  practically  an 
interference  in  his  domain.    The  courts  have  interfered  with 
the  actions  of  the  officers  of  the  legislative  department  by 
requiring  them  to  make  certain  certificates,  to  open  and 
publish  before  the  assembled  legislature  the  returns  of  the 
election,  and  by  deciding  in  a  collateral  proceeding  a  mem- 
bership in  the  legislature,  when  the  legislature  has  failed  to 
act.     In  a  mandamus  proceeding  to  compel  the  secretary 
of  state  to  deliver  the  election  returns  to  the  speaker  of  the 


§  97.]  MANDAMUS   TO    EXECUTIVE    OFFICERS.  113 

house  of  representatives  for  presentation  to  the  latter,  the 
court  decided  which  of  two  bodies,  each  claiming  to  be  the 
house  of  representatives,  was  the  legal  house.1  It  should  be 
stated  that  all  the  courts  which  have  so  ruled,  except  one, 
which  does  not  seem  to  have  been  called  on  to  act,  have 
maintained  the  right  to  issue  a  mandamus  to  the  governor 
of  the  state.  The  courts  have  interfered  in  the  question 
of  the  governorship  of  the  state.  It  has  been  said,  though 
rather  as  an  obiter  dictum,  that  he  who  is  entitled  to  the 
office  of  governor  of  a  state  may  obtain  it  by  the  writ  of 
mandamus;2  but  in  two  cases  the  courts  have  interfered  by 
the  writ  of  quo  warranto  and  have  turned  out  the  incumbents 
to  seat  the  parties  whom  they  considered  to  be  entitled  to 
the  office.3  For  such  action  the  plea  of  necessity  may  be 
urged,  but  it  is  in  the  highest  degree  an  interference  with  a 
co-ordinate  branch  of  the  government.  It  attacks  its  very 
existence,  as  represented  by  the  person  who  is  executing  its 
functions.  The  same  may  be  said  when  the  courts  under- 
take to  decide  (and  why  not  directly  as  well  as  indirectly?) 
what  bodies  of  men  constitute  the  legislature.  If  neces- 
sity is  the  plea  for  such  action,  who  is  to  determine  the 
question  when  each  of  two  bodies  claims  to  constitute 
the  highest  judicial  tribunal?  A  constitutional  conven- 
tion vacated  the  seats  of  all  the  judges  of  the  supreme 
court  and  authorized  the  governor  to  fill  the  vacancies  thus 
created,  which  he  proceeded  to  do.  The  old  court  claimed 
that  the  action  of  the  constitutional  convention  was  void 
and  undertook  to  discharge  their  official  functions,  when 
the  governor  removed  them  by  force  and  installed  his  ap- 
pointees, whose  rights  were  never  questioned  afterwards.4 
Fortunately  such  cases  seldom  arise,  yet  they  show  that 
the  courts  cannot  cope  with  all  the  difficulties,  and  if 
they  cannot  act  in  some  cases  it  cannot  follow  that  they 
are  necessarily  the   parties  to  pass  on  other  cases,  where 

1  See  §  107.  Wis.  567 ;  State  v.  Boyd  (Neb.,  May  5, 

2  Goff  v.  Wilson,  32  W.  Va.  393.        1891),  48  N.  W.  Rep.  739. 

3  Attorney-General  v.  Barstow,  4       4  Preface  to  35  Mo.  Reports. 

8 


114  MAm)AMUS   TO   EXECUTIVE    OFFICERS.  [§  98. 

political  questions  of  a  similar  nature  are  involved,  namely, 
the  independence  of  the  various  co-ordinate  branches  of  the 
government.  "When  it  is  remembered  that  the  use  of  this 
writ  is  the  outgrowth  of  necessity  in  order  to  meet  the  de- 
mands of  justice,  and  its  issuance  is  largely  dependent  upon 
the  discretion  of  the  court,  its  use  to  determine  the  legality 
of  a  body  claiming  to  be  a  legislature  seems  questionable, 
while  its  issue  to  compel  an  action  b}T  the  governor,  on  ac- 
count of  the  uncertainty  as  to  whether  it  will  be  obeyed, 
and  the  possibilities  of  a  public  scandal  produced  thereby, 
would  seem  to  be  entirely  inappropriate. 

§  98.  Mandamus  to  the  governor  of  a  state  from  a  fed- 
eral court. —  "What  has  been  said  relative  to  the  issuance 
of  a  mandam  us  from  a  state  court  to  the  governor  of  a 
state  does  not  apply  when  the  writ  is  issued  from  a  federal 
court.  The  United  States  in  its  domain  is  superior  to  the 
states,  and  in  enforcing  its  laws  deals  with  all  persons  as 
individuals,  owing  obedience  to  its  authority.  Nothing  can 
be  interposed  between  the  individual  and  the  obligation  he 
owes  to  the  constitution  and  laws  of  the  United  States, 
which  can  shield  or  defend  him  from  their  just  authority, 
and  the  extent  and  limits  of  that  authority  the  United 
States,  by  its  judiciary,  interprets  and  applies  for  itself.  If, 
therefore,  an  individual,  acting  under  the  assumed  author- 
ity of  a  state  as  one  of  its  officers,  and,  under  color  of  its 
laws,  comes  into  conflict  with  the  superior  authority  of  the 
United  States,  he  is  stripped  of  his  representative  charac- 
ter and  subjected  in  his  person  to  the  consequences  of  his 
individual  conduct.  The  state  has  no  power  to  impart  to 
him  any  immunity  from  responsibility  to  the  supreme 
authority  of  the  United  States.1  A  governor,  as  a  mem- 
ber of  a  board,  has  been  required  by  injunction  to  conform 
in  its  actions  to  a  state  law :  the  court  held  that  the  writ  of 
mandamus  or  that  of  injunction  would  lie  in  such  cases, 
and  that  therein  the  two  writs  were  somewhat  correlative/ 

i  Ayers,  In  re,  123  U.  S.  443.  Comb,  92  U.  S.  531 ;  Rolston  v.  Mis- 

2  Board  of    Liquidation    v.   Mc-    souri  Fund  Convrs,  120  U.  S.  390. 


§  99.]  MANDAMUS    TO    EXECUTIVE    0FFICEBS.  115 

To  evade  the  performance  of  his  duty,  an  officer  cannot 
plead  an  unconstitutional  law  of  the  state,  since  the  federal 
court  will  treat  such  law  as  null  and  void,  and  it  will  not 
prevent  the  issuance  of  the  proper  writ.1  With  the  excep- 
tion of  a  few  cases  of  original  jurisdiction  of  the  supreme 
court,  a  state  cannot  be  sued  in  the  federal  courts  without 
its  consent,  and  therefore  a  writ  of  mandamus  cannot  be 
maintained  when  in  effect  it  is  a  suit  against  the  state. 
Therefore,  when  a  state  has  contracted  to  dispose  of  its 
taxes  in  a  certain  way,  but  subsequently  passes  a  law  mak- 
ing a  different  disposition  thereof,  it  cannot  be  compelled 
to  carry  out  such  contract  by  requiring  its  officers  to  dis- 
pose of  such  funds  according  to  such  contract  so  long  as 
such  funds  are  in  the  possession  of  the  state,  and  if  such 
officers  in  their  relations  thereto  are  not  trustees  thereof 
but  mere  agents  of  the  state.2 

§  99.  Mandamus  to  other  executive  officers.—  The  ques- 
tions of  political  necessity  and  public  policy,  which  present 
themselves  when  an  application  is  made  to  coerce  a  gov- 
ernor of  a  state,  do  not  exist  in  the  case  of  any  other  offi- 
cer. The  courts,  therefore,  do  not  decline  to  issue  this  writ 
to  any  other  officer  to  compel  the  performance  of  a  mere 
ministerial  duty.  Apparently  the  only  courts  holding  other- 
wise are  those  of  Minnesota  and  Texas,  which  base  their 
decisions  on  their  constitutional  provisions  that  the  three  co- 
ordinate branches  of  government  shall  be  entirely  separate.3 
Where,  however,  the  heads  of  departments  or  any  other 
officers  act  in  any  transaction  as  the  political  or  confidential 
agents  of  the  president  of  the  United  States,  or  of  a  state 
governor,  and  subject  to  the  will  of  their  principals,  their 
acts  therein  are  the  acts  of  their  principals,  and  no  writ  of 
mandamus  will  lie  to  control  them  in  any  manner  in  such 
transaction.4    Inasmuch  as  it  is  impossible  to  formulate  any 

i  Board    of   Liquidation  v.   Mc-  3  State  v.  Dike,  20  Minn.  363 :  State 

Comb,  92  U.  S.  531,  541 ;  Poindexter  v.  Braden,  40  Minn.  174 ;  Bledsoe  v. 

v.  Greenhow,  114  U.  S.  270.  International  R  R,  40  Tex.  537. 

2  Louisiana  v.  Jumel,  107  U.  S.  711.  4  Marbury  v.  Madison,  1  Cranch, 


116  MANDAMUS   TO   EXECUTIVE    OFFICEKS.  [§  100. 

sensible  distinction  applicable  to  all  cases  between  discre- 
tionary and  ministerial  acts,  the  refinements  and  mere 
verbal  distinctions  being  such  as  to  leave  an  almost  unlim- 
ited discretion  to  the  courts,1  it  may  be  well  to  call  atten- 
tion to  a  number  of  decisions  in  cases  of  mandamus  to 
executive  officers  as  being  the  best  guides  in  elucidating  the 
distinction  made  in  the  courts. 

§  100.  Mandamus  to  heads  of  federal  executive  depart- 
ments.—  The  head  of  an  executive  department  of  the  fed- 
eral government  will  never  be  interfered  with  in  the  ordi- 
nary discharge  of  his  official  duties,2  even  when  those  require 
an  interpretation  of  the  law.3  The  writ  has  been  refused : 
to  compel  the  interior  department  to  issue  a  patent  for 
public  lands ; 4  to  compel  the  secretary  of  the  navy  to  allow 
a  widow,  to  whom  a  pension  had  been  granted  under  a  spe- 
cial act  of  congress,  and  who  had  applied  for  and  received 
a  pension  under  the  general  law,  the  pension  under  the  spe- 
cial law,  the  secretary  denying  her  right  to  take  both  pen- 
sions ; 5  to  compel  the  commissioner  of  patents  to  re-issue  a 
patent  to  an  assignee  thereof,  he  having  decided  that  he 
was  not  such  an  assignee  as  to  be  entitled  thereto  under  the 
law ; 6  to  compel  the  secretary  of  the  navy  to  pay  his  salary 
to  a  person  who  had  been  an  officer  in  the  Texas  navy,  and 
who  claimed,  by  virtue  of  the  transfer  of  that  navy  to  the 
United  States,  to  be  an  officer  in  the  United  States  navy;7 
to  reverse  the  decision  of  the  commissioner  of  pensions  in 
refusing  an  increase  of  pensions;8  to  make  the  secretary  of 
the  treasury  pay  the  amount  allowed  the  relator  by  other 

137;  State  v.  Governor,  25  N.  J.  L.  200;  United  States  v.   Lynch,  137 

331 ;  Hawkins  v.  Governor,  1  Ark.  U.  S.  280. 

570.  4  Secretary     v.     McGarrahan,    9 

1  Decatur  v.  Paulding,  14  Pet.  497.  Wall.  298. 

2  Reeside  v.  Walker,  11  How.  272 ;  5  Decatur  v.  Paulding,  14  Pet.  497. 
United  States  v.  Black,  128  U.S.  6 Commissioner     of    Patents     v. 
40 ;    United  States  v.  Boutwell,  3  Whiteley,  4  Wall.  522. 
MacArtbur,  172;  Kendall  v.  United  "Brashear  v.  Mason,  6  How.  92. 
States,  12  Pet.  524 ;  United  States  v.  8  United  States  v.  Black,  128  U.  S. 
Guthrie,  17  How.  284.  40. 

a  United  States  v.  Rauni,  135  U.  S. 


§  101.]  MANDAMUS   TO   EXECUTIVE    OFFICEES.  117 

departments  in  satisfaction  of  his  claim,1  and  to  compel  the 
canceling  of  an  entry  of  public  land.2  "Where  money  is  re- 
ceived by  the  secretary  of  state  of  the  United  States  from 
a  foreign  nation  under  an  agreement  between  the  two 
nations,  which  money  is  in  satisfaction  of  claims  of  its  citi- 
zens against  such  nation,  which  are  urged  by  the  United 
States,  a  mandamus  will  not  lie  at  the  instance  of  the  claim- 
ant to  compel  the  secretary  to  pay  such  money  to  him, 
since  in  such  matters  by  law  the  secretary  acts  in  such 
manner  as  the  president  may  direct,  and  he  must  be  pre- 
sumed to  be  acting  under  such  directions.3  Where  money 
was  paid  to  the  secretary  of  state  by  a  foreign  government 
upon  an  award  made  in  accordance  with  a  treaty,  in  satis- 
faction of  a  private  claim  against  such  government,  which 
money,  by  act  of  congress,  the  president,  if  he  was  of  the 
opinion  that  the  merits  of  such  claim  should  be  re-exam- 
ined, was  authorized  to  withhold  from  the  claimant  till  such 
re-examination  was  had,  or  till  congress  otherwise  ordered, 
a  mandamus  to  compel  the  secretary  of  state  to  pay  the 
money  to  the  claimant  was  refused.  So  long  as  the  political 
branch  of  the  government  had  not  lost  its  control  over  the  sub- 
ject-matter  by  final  action,  the  claimant  was  not  in  a  position, 
as  between  himself  and  his  goverment,  to  insist  on  the  con- 
clusiveness of  the  award  as  to  him.  So  long  as  the  political 
department  had  not  parted  with  its  power  over  the  money, 
the  intervention  of  the  judicial  department  could  not  be 
invoked.4 

§  101.  Cases  of  mandamus  to  the  heads  of  federal  ex- 
ecutive departments.  —  On  the  other  hand,  when  the  duty 
is  merely  ministerial,  or  if  the  officer  refuses  to  act  at  all 
in  the  case  of  a  duty  involving  discretion,  the  writ  will 
issue  to  such  head  of  an  executive  department  of  the  federal 
government,  in  the  one  case  to  perform  the  act,  and  in  the 

i  United   States    v.   Boutwell,    3  3  United  States  v.  Bayard,  15  Dist. 

MacArthur,  172.  CoL  370. 

2  Gaines   v.  Thompson,  7  Wall  *  United  States  v.  Blaine,  139  U.  S. 

347.  306. 


118  MANDAMUS    TO    EXECUTIVE    OFFICERS.  [§  102. 

other  to  proceed  to  consider  the  matter.1  The  writ  has  been 
issued :  to  compel  the  secretary  of  the  interior  to  deliver  a 
patent  for  land  which  had  already  been  prepared,  signed, 
sealed,  countersigned  and  duly  recorded ; 2  to  compel  the 
postmaster-general  to  credit  the  account  of  a  mail  con- 
tractor with  certain  allowances,  which  had  been  properly 
determined,  as  provided  by  statute ; 3  to  compel  the  com- 
missioner of  patents  to  prepare  and  seal  a  patent  and  pre- 
sent it  for  signature  to  the  secretary  of  the  interior  in  a 
case  of  interference,  when  he  had  decided  that  the  patent 
ouo-ht  to  issue,  but  withheld  it  on  account  of  a  reversal  of 
his  decision  by  the  secretary  of  the  interior,  whereas,  in 
law,  no  appeal  was  allowed  to  the  secretary ; 4  and  to  com- 
pel the  commissioner  of  patents  to  give  a  copy  of  an 
abandoned  or  rejected  application  for  a  patent  upon  a  rea- 
sonable suggestion  of  the  necessity  thereof  for  purposes  of 
evidence.5  It  is  maintained  that,  as  a  general  rule,  when  a 
superior  tribunal  has  rendered  a  decision  binding  on  an  in- 
ferior, it  becomes  the  ministerial  duty  of  the  latter  to  obey 
and  carry  it  out.  So  when  a  subordinate  officer  is  over- 
ruled by  a  superior,  his  duty  to  obey  such  decision  is  a 
ministerial  duty,  which  may  be  enforced  by  a  mandamus* 
"When  an  application  for  an  increase  of  pension  was  refused 
by  the  commissioner  of  pensions,  but  his  decision  was  re- 
versed by  the  secretary  of  the  interior,  a  mandamus  was 
issued  to  compel  the  commissioner  to  allow  the  increase.7 

§  102.  Mandamus  to  the  secretaries  of  state  of  the  va- 
rious states. —  In  the  various  states  (except  in  Texas  and 

1  United    States    v.    Guthrie,    17  2  United    States    v.   Schurz,    102 

How.  284 ;  Mai  bury  v.  Madison,   1  U.  S.  378. 

Cranch,     137 ;     United     States   v.  3  Kendall  v.    United    States,   12 

Raum,  135  U.   S.   200 ;   Carrick  v.  Pet  524. 

Lamar,  116  U.  S.  423;    Bayard  v.  <  Butterworth  v.  Hoe,  112  U.S. 

United     States,     127     U.   S.    246;  50. 

United  States  v.  Black,   128  U.  S.  5  United  States  v.  Hall,  18  Dist 

40 ;  Kendall  v.  United    States,    12  Col.  14. 

Pet.  524;  United  States  v.  Blaine,  6  United  States  v.  Raurn,  135  U.  S. 

139    U.   S.   306;   United    States  v.  200. 

Windom,  137  U.  S.  636.  1  Miller  v.  Black,  128  U.  S.  50. 


§  102.]  MANDAMUS   TO   EXECUTIVE    OFFICERS.  119 

Minnesota)  it  seems  never  to  have  been  decided  that  all  the 
acts  of  the  head  of  a  department  in  the  discharge  of  the 
ordinary  duties  of  his  office  are  beyond  the  reach  of  a 
mandamus,  but  the  decisions  have  been  directed  entirely 
to  the  nature  of  the  act  itself  whose  performance  was 
sought.  When  an  act  to  be  done  by  the  secretary  of  state 
is  ministerial,  the  writ  of  mandamus  is  proper  to  compel 
its  performance.1  This  writ  has  been  issued :  to  compel  the 
secretary  of  state  to  audit  and  allow  an  account  against  the 
state,  and  to  draw  a  warrant  therefor  on  the  state  treas" 
urer ; '-'  to  cause  certain  acts  of  the  legislature  to  be  pub- 
lished in  certain  papers  for  a  certain  period  of  time,  as 
provided  by  the  state  constitution ; 3  to  furnish  the  relator 
with  a  copy  of  the  laws  for  publication  in  a  newspaper  ac- 
cording to  statute ; 4  to  attest  and  record  the  commission 
of  an  officer,  which  the  governor  had  signed  and  sealed ; 5 
to  compute  the  election  returns  filed  with  him,  and  to  give 
a  certificate  thereof  to  the  party  having  the  highest  num- 
ber of  votes ; 6  to  furnish  a  copy  of  the  laws  to  the  person 
wTho  had  the  contract  to  print  them ; 7  to  revoke  the  license 
of  a  foreign  insurance  company  to  do  business  in  the  state, 
for  obtaining  the  removal  of  a  suit  against  it  to  a  federal 
court  contrary  to  the  agreement  made  by  it  when  it  pro- 
cured its  license ; 8  to  include  in  the  notice  of  election  an 

1  State  v.  Secretary  of  State,  33  to  promulgate  laws  or  to  make 
Mo.  293 ;  Free  Press  Ass'n  v.  Nichols,  others  publish  them,  and  that  re- 
45  Vt.  7 ;  State  v.  Hayne,  8  Rich,  dress  was  to  be  found  in  the  leg- 
(N.  S.)  367;  Black  v.  Auditor  of  islative  or  executive  departments. 
State,  26  Ark.  237 ;  People  v.  State  State  v.  Deslonde,  27  La.  An.  71. 
Auditors  (Board),  42  Mich.  422 ;  *  State  v.  Harvey,  14  Wis.  151. 
State  v.  Warner,  55  Wis.  271 ;  Peo-  5  Hawkins  v.  Governor,  1  Ark. 
pie  v.  Governor,  29  Mich.  320 ;  Haw-  570 ;  State  v.  Wrotnowski,  17  La. 
kius  v.  Governor,  1  Ark.  570.  An.  156. 

2  State  v.  Warner,  55  Wis.  271.  6  Pacheco  v.  Beck,  52  CaL  3 ;  State 

3  State  v.  Mason  (La.,   April  27,  v.  Lawrence,  3  Kans.  95 ;  State  v. 
1891),  9  South.  R  776.     In  an  earlier  Rodman,  43  Mo.  256. 

case  of  a  similar  nature  the  writ  7  State  v.  Barker,  4  Kans.  379. 

was   refused.     The  court  then  de-  8  State    v.  Doyle,    40  Wis.    175; 

cided,  without  arguing  the  ques-  State  v.  Doyle,  40  Wis.  220. 
tion,  that  the  courts  have  no  power 


120  MANDAMUS   TO   EXECUTIVE    OFFICERS.  [§  103. 

officer  omitted  by  him,1  and  to  allow  a  party,  authorized  by 
the  legislature,  to  complete  certain  indexing,  and  to  allow 
his  clerks  access  to,  and  the  use  of,  his  records  for  that  pur- 
pose.2 

§  103.  Mandamus  to  a  state  treasurer.—  A  mandamus 
lies  to  make  a  state  treasurer  pay  warrants  drawn  on  him 
by  the  proper  officer,3  provided  he  has  funds  in  his  hands 
appropriated  by  law  to  that  purpose.4  Unless  the  legisla- 
ture has  made  the  proper  appropriation,  the  writ  will  not 
lie,  because  the  state  cannot  be  sued  indirectly.5  Even 
though  there  is  an  appropriation,  but  no  funds  are  on  hand, 
the  writ  will  not  be  granted,  with  an  order  to  pay  the  claim 
when  he  has  funds,  since  that  would  give  a  preference.8 
The  writ  will  not  issue  to  compel  the  state  treasurer  to  act 
in  disobedience  of  the  instructions  of  the  legislature,  since 
the  legislature  has  supreme  authority  in  such  matters,  and 
state  officers  cannot  be  required  to  act  contrary  to  the  or- 
ders of  the  state.  The  writ  of  mandamus  will  not  lie :  to 
compel  the  state  treasurer  to  pay  a  warrant  of  the  auditor, 
when  the  legislature  has  forbidden  its  issuance ; 7  to  compel 
the  fund  commissioners  to  pay  state  bonds  in  gold  or  silver, 
when  the  legislature  has  by  joint  resolution  instructed  that 
the  payment  shall  be  made  in  legal  currency ; 8  to  pay  war- 
rants issued  under  a  law  by  the  governor,  when  he  has  been 
ordered  by  a  resolution  of  the  legislature  not  to  pay  them, 
which  has  been  approved  by  the  governor.9  In  order  to 
compel  obedience  to  a  statute  by  the  state  treasurer,  a 
mandamus  has  been  issued  ordering  him :  to  issue  certificates 
of  indebtedness,10  to  issue  state  bonds  to  a  railroad  com- 

i  People  v.  Carr,  86  N.  Y.  512.  6  Weston  v.  Dane,  51  Me.  461. 

2  Pinckney  v.  Henegan,  2  Strob.  6  State  v.   Dubuclet,   26  La.  An. 
250.  127.     Contra:    People    v.   Sec.    of 

3  Selma,  etc.  RR,Ex parte, 46  Ala.  State,  58  111.  90. 

423 ;   State  v.  Bordelou,  6  La  An.        7  Bayne  v.  Jenkins,  66  N.  C.  356. 

68 ;    State    v.  Hickman,   10  Mont        8  State  v.  Hays,  50  Mo.  34. 

497.  9  Fletcher  v.  Renf roe,  56  Ga.  674. 

*  Hommerich  v.  Hunter,  14  La.  10  State  v.  Cardozo,  5  Rich.  (N.  S.) 

An.  225.  297. 


§  104.]  MANDAMUS    TO    EXECUTIVE    OFFICERS.  121 

pany,  which  had  complied  with  the  law  entitling  it  thereto,1 
arid  to  stamp  state  bonds  in  the  hands  of  private  parties.2 
This  writ  has  been  issued  to  a  state  treasurer  to  compel 
him  to  surrender  to  a  municipality  its  bonds  issued  in  aid 
of  a  railroad  company,  but  subsequently  adjudged  to  be 
invalid ; 3  in  such  case  this  proceeding  is  considered  to  be 
the  only  remedy  which  is  admissible,  because  a  sheriff  with 
a  writ  of  replevin  should  not  be  allowed  to  intermeddle 
with  public  papers.4  "When  an  application  is  made  for  a 
mandamus  to  compel  the  state  treasurer  to  pay  a  claim 
audited  and  allowed  by  the  secretary  of  state,  the  court 
can  examine  into  the  question  of  the  legality  of  the  claim, 
but,  if  it  is  legal,  the  decision  of  the  secretary  as  to  the 
amount  thereof  is  conclusive.5 

§  104.  Mandamus  to  the  comptroller  of  a  state. —  As 
being  a  mere  ministerial  act  a  mandamus  has  been  issued 
to  the  state  comptroller:  to  audit  the  account  of  a  member 
of  the  legislature ; 6  to  issue  a  warrant  to  relator  for  money 
due  him  under  a  contract  relating  to  the  state  prison,  when 
the  contract  specified  the  amount  due  each  month  and  the 
legislature  had  appropriated  the  money  therefor ; 7  to  draw 
a  warrant  for  a  judge's  salary ; 8  to  allow  the  district  at- 
torney to  inspect  and  copy  his  records,  relating  to  the  re- 
turns made  to  him  concerning  the  proceeds  of  assessments, 
it  being  the  district  attorney's  duty  to  bring  suit  for  de- 
linquent taxes ; 9  and  to  issue  his  warrant  to  the  paymaster 
of  a  regiment  for  the  sum  allowed  by  law  to  each  company, 
when  the  facts  are  admitted  and  the  only  question  involved 
is  one  of  law.10  If  the  comptroller  believes  the  party  is  not 
an  officer  de  jure,  he  may  refuse  to  issue  his  warrant  for 

1  Northwestern,  etc.  R  R  v.  Jen-  5  State  v.  Hastings,  10  Wis.  518. 
kins,  65  N.  C.  173.  6  Fowler  v.  Pierce,  2  Cal.  165. 

2  State  v.  Burke,  33  La  An.  969.  7McCauley  v.  Brooks,  16  CaL  11. 

3  People  v.  Treasurer,  23  Mich.  499;  8  Turner  v.  Melony,  13  Cal.  621. 
People  v.  State  Treasurer,  24  Mich.  »  State  v.  Hobart,  12  Nev.  408. 
468.  io  state  v.  Anderson,  52  N.  J.  L» 

4  People  v.   State    Treasurer,  24  150. 
Mich.  468. 


122  MANDAMUS    TO   EXECUTIVE    OFFICERS.  [§  105. 

such  officer's  salary,  and  wait  for  the  decision  of  the  court 
in  a  mandamus  proceeding.1  An  answer  that  such  person  is 
ineligible  to  the  office,  when  he  has  been  inducted  into  office 
and  has  a  commission  therefor,  is  invalid,  since  in  this  pro- 
ceeding the  title  to  an  office  cannot  be  tried.2  When  the 
comptroller-general  is  requested  to  levy  a  tax  to  pay  the 
interest  on  the  public  debt,  if  he  has  a  reasonable  doubt  as 
to  the  existence  of  a  fact,  upon  which  the  duty  of  perform- 
ance depends,  he  may  make  the  party  prove  such  fact  in  a 
proper  judicial  proceeding,  as  in  mandamus?  The  comp- 
troller must  be  specifically  and  specially  authorized  by  law 
to  perform  the  duty  whose  enforcement  is  sought.  When 
the  law  so  provided,  he  was  ordered  to  draw  his  warrant  in 
payment  of  an  officer's  salary,4  and  to  pay  for  supplies  fur- 
nished to  the  state.5  He  was  not  required  to  draw  his 
warrant  to  pay  the  salary  of  the  salt  commissioner,  because 
the  law  did  not  specifically  and  specially  make  it  his  duty 
to  do  so.6  When  the  statute  fixes  the  salary  of  an  officer 
and  directs  that  it  be  paid  out  of  the  state  treasury,  it  is 
not  necessary  that  there  should  be  an  annual  appropriation 
therefor,  and  the  comptroller  will  be  required  to  issue  his 
warrant  to  pay  it.7  In  any  matter  where  the  comptroller 
is  authorized  to  exercise  his  judgment  and  discretion,  the 
writ  of  mandamus  will  of  course  not  lie ;  as  to  correct  an 
error  in  a  tax  duplicate;8  or  to  adjust  and  settle  public  ac- 
counts, when  he  is  given  exclusive  power  in  the  premises.9 
§  105.  Mandamus  to  the  auditor  of  a  state. —  The  writ 
of  mandamus  also  lies  to  compel  a  state  auditor  to  perform 
a  mere  ministerial  act.10   The  law  having  prescribed  the  duty, 

i  State  v.  Gamble,  13Fla.  9.  (Idaho,  Feb.,   1891),  25    Pac.   Rep. 

2  Turner  v.  Melony,  13  Cal.  621.        1092;  State  v.  Hickman,  10  Mont. 

3  Morton  v.  Comptroller-General,     497. 

4  Rich.  (N.  S.)  430.  8  Lynch,  Ex  parte,  16  S.  C.  32. 

i  Humbert  v.  Dunn,  34  Cal.  57.  9  Green   v.  Purnell,  12  Md.  329; 

5  Proll  v.  Dunn,  80  Cal.  220.  Towle  v.  State,  3  Fla.  202. 

eChisholm  v.  McGehee,  41  Ala.  "State  v.  Warner,  55  Wis.  271; 

192.  Free    Press    Assoc,   v.   Nichols,  45 

7  Nichols  v.  Comptroller,  4  Stew.  Vt.  7. 
&   Port.   154;    Gilbert    v.    Moody 


§  105.]  MANDAMUS   TO   EXECUTIVE    OFFICERS.  123 

this  writ  lias  been  issued  to  a  state  auditor  to  compel  him : 
to  draw  a  warrant  for  the  salary  of  an  officer,  when  the 
amount  thereof  was  fixed  by  law ; '  to  transfer  and  fund 
certain  state  bonds ; 2  to  issue  his  warrant  for  $2,500  in  favor 
of  a  military  command ; 3  to  publish  the  semi-annual  state- 
ment of  foreign  insurance  companies  doing  business  in  the 
state  in  two  daily  papers  having  the  largest  circulation,  but 
leaving   with  him  the   selection;4    to   advertise   for   bids 
for   the   public   printing;5   to   issue  his   warrant    for  the 
amount  due   for  property  received  by  the  state  on  a  con- 
tract made  with  it ; 6  to  issue  notes  of  circulation  to  a  bank 
which  had  properly  organized  and  applied  for  them ; 7  and 
to  draw  a  wan-ant  for  interest  on  state  bonds,  though  the 
wrong  party  had  already  been  paid  the  interest  on  the  same 
bonds.3  Where,  however,  the  auditor  is  in  doubt  about  the 
legality  of  issuing  his  warrant  to  the  applicant,  he  may  refuse 
sometimes  to  issue  it,  out  of  abundant  caution  and  in  order 
to  obtain  the  opinion  of  the  court.9    When  the  law  has  ap- 
pointed another  officer  or  tribunal  to  examine  and  certify 
a  claim,  the  auditor's  duty  in  drawing  the  warrant  therefor  is 
purely  ministerial.10     A  recorder  of  brands  and  marks  was 
authorized  by  law  to  have  certain  lists  printed  at  the  pub- 
lic expense ;  this  implied  a  right  to  make  a  contract  and  fix 
the  price ;  the  auditor  was  held  to  have  no  discretion,  and  was 
required  to  issue  his  warrant  for  the  amount  fixed  by  the 
contract.11    When  the  claim  must  be  established  before  the 
auditor  himself,  he  will  not  be  required  to  draw  a  warrant 

i  Black  v.  Auditor,  26  Ark.  237 ;        5  People   v.  Auditors  (State),  42 
Bryan  v.  Cattell,  15  Iowa,  538 ;  State    Mich.  422. 

v.  Clinton,  28  La.  An.  47 ;  Fowler  v.        6  People  v.  Secretary  of  State,  58 
Pierce,  2  Cal.  165 :  Swan  v.  Buck.     111.  90. 

40  Miss.   268 ;  Reynolds  v.  Taylor,        » Citizens'  Bank  v.  Wright,  6  Ohio 
43  Ala.  420.  St  318. 

2 Robinson  v.   Rogers,    24    Grat        estate  v.  Smith,  43  111.  219. 
319  9  Bryan  v.  Cattell,  15  Iowa,  538. 

3  State  v.  Bordelon,  6  La.  An.  68.       N>Lindsey  v.  Auditor  of  Ky.,    3 

i  Holliday  v.  Henderson,   67  Ind.     Bush,  231 ;  Danley  v.  Whiteley,  14 

103.  Ark- 687- 

ii  Fisk  v.  Cuthbert,  2  Mont.  593. 


12 i  MAXDAMCS    TO    EXECUTIVE   OFFICEKS.  [§  105. 

for  its  payment,  unless  it  is  shown  that  the  claim  has  been 
properly  established  before  him.1  There  must,  however,  be 
an  appropriation  by  the  legislature  to  cover  such  claims, 
before  the  auditor  can  be  required  to  issue  a  warrant  on  the 
state  treasury  for  their  payment.2  The  auditor  may  also 
show,  in  justification  of  his  refusal  to  issue  his  warrant,  that 
the  appropriation  is  exhausted,  or  that  the  claim  exceeds 
the  revenue  of  the  year  from  which  it  is  exigible.3  When 
the  money  to  pay  that  claim  has  been  appropriated  by  the 
legislature  and  the  amount  thereof  has  been  ascertained  in 
the  manner  prescribed  by  law,  a  mandamus  will  lie  to  com- 
pel the  state  auditor  to  issue  a  warrant  on  the  state  treas- 
ury for  its  payment.4  The  fact  that  there  is  no  money  at 
the  time  does  not  concern  the  auditor  and  does  not  prevent 
the  issuance  of  the  writ.8  The  writ  will  not  lie  to  estab- 
lish in  this  mode  unliquidated  claims  against  the  state.  In 
such  cases  relief  must  be  sought  at  the  hands  of  the  legis- 
lature.6 Where,  however,  the  power  is  given  to  an  audi- 
tor to  settle  claims  against  the  state,  an  account  settled  and 
certified  by  one  auditor  cannot  be  altered  by  his  successor, 
and  any  corrections  made  by  him  are  merely  void,  and  a 
writ  of  mandamus  will  not  issue  to  compel  him  to  strike 
them  out.7  It  sometimes  occurs  that  an  application  is  made 
to  the  auditor  to  pay  the  salary  or  settle  the  account  of  an 
officer  whose  title  to  his  office  is  in  dispute.  In  such  cases 
the  auditor  must  recognize  the  title  of  the  person  who  holds 
the  commission,8  and  is  also  the  de  facto  officer.9    When 

i  Swarm  v.  Work,  24  Miss.  439.  See     §    126.      Contra:   People    v. 

2  State  v.  Jumel,  31  La.  An.  142 ;  Tremain,  29  Barb.  96 ;  Gilbert  v. 
State  v.  Kenney,  9  Mont.  389 ;  Carr  Moody  (Idaho,  Feb.,  1891),  25  Pac. 
v.  State,  127  Ind.  204;  State  v.  Hoi-  Rep.  1092. 

laday,  65  Mo.  76 ;    Evans  v.  McCar-        « Swan  v.   Buck,  40    Miss.   268 ; 
thy,  42  Kans.  426.  Rice  v.  State,  95  Ind.  33. 

3  State  v.  Jumel,  30  La.  An.  339.        ?  State  v-  Brewer,  61  Ala.  318. 

<  Rice  v.  State,  95  Ind.  33 ;  State  8  State  v.  Moseley,  34  Mo.   375 ; 

v.  Kenney,  9  Mont.   223 ;  Swan  v.  Winston  v.  Moseley,   35   Mo.  146 ; 

Buck,  40  Miss.  268.  State  v.  Clark,  52  Mo.  508. 

5  State  v.  Clinton,  28  La.  An.  47 ;  9  State  v.  Draper,  48  Mo.  213. 
Evans  v.  McCarthy,  42  Kans.  426. 


§  106.  MANDAMUS    TO    EXECUTIVE    OFFICERS.  125 

such  difficulty  occurs  relative  to  a  membership  of  the  legis- 
lature, and  the  legislature  itself  has  failed  to  act  in  the  mat- 
ter, the  auditor  must  recognize  the  person  who  holds  the 
certificate  of  election  issued  by  the  legally  instituted  can- 
vassing board  of  the  election.1  Since  the  auditor  can  only 
be  required  to  perform  a  duty  imposed  upon  him  by  law, 
he  cannot  be  required  to  issue  his  warrant,  if  the  legisla- 
ture has  altered  the  law  so  that  it  is  no  longer  his  duty  to 
do  so.  "Whether  the  state  has  by  its  legislation  impaired 
the  obligations  of  its  contract  with  the  relator  cannot  be 
inquired  into  in  a  mandamus  proceeding  wherein  the  state 
is  not  a  party,  since  the  auditor  has  no  interest  in  that  ques- 
tion.2 'When  the  duty  imposed  on  the  auditor  involves 
judgment  and  discretion,  as  whether  a  foreign  insurance 
company  should  have  a  license  to  do  business  in  the  state, 
the  writ  will  issue  only  in  a  case  of  clear  and  wilful  disre- 
gard of  duty.3 

§  106.  Mandamus  to  commissioner  of  state  land  office.— 
A  writ  of  mandamus  will  lie  to  the  commissioner  of  the 
state  land  office,  when  nothing  remains  to  be  done  but  the 
enforcement  of  a  legal  duty,4  as  to  issue  patents  to  a  com- 
pany for  lands  selected  for  it  as  provided  by  law,5  or  to 
issue  patent  certificates  for  swamp  land.6  It  should  be  re 
membered  that  Minnesota  and  Texas,  but  apparently  no 
other  state,  refuse  to  issue  this  writ  to  the  chief  officer  of 
any  executive  department  of  the  state,7  though  it  is  admit- 
ted that  in  the  latter  state  it  has  been  issued  to  the  com- 
missioner of  the  general  land  office ;  but  this  has  occurred 
only  in  reference  to  patents  for  land,  and  is  claimed  to  be 
an  exception  to  the  rule.8 

i  State  v.  Kenney,  9  Mont  389.  6  Hempstead  v.  Underhill,  20  Ark. 

2  State  v.  Clinton,  27  La.  An.  429.  337. 

3  State  v.   Benton,  25  Neb.   834;  '  State  v.  Whitcomb,  28  Minn.  50 ; 
Western  H.   I.   Co.   v.  Wilder,  40  Chalk  v.  Darden,  47  Tex.  438. 
Kans.  561.  8  Galveston,   etc.   R.  E.  v.  Gross, 

4  Webster  v.  Newell,  66  Mich.  503.    47  Tex.  428. 
»  People  v.  Com'r  S.  Land  Off.,  23 

Mich.  270. 


CHAPTER  9. 

MANDAMUS  TO  THE  LEGISLATIVE  DEPARTMENT. 

§  107.  The  legislative  department  is  one  of  the  three  co. 
ordinate  branches  of  the  government,  and  all  the  argu- 
ments advanced  concerning  the  coercion  of  one  department 
by  another,  already  referred  to  in  the  discussion  concern- 
ing the  issuance  of  a  mandamus  against  the  governor,  are 
applicable  here.  Yery  few  cases  are  to  be  found  in  the 
reports  where  the  courts  have  been  called  upon  to  inter- 
fere in  legislative  matters.  The  law  required  the  speaker 
of  the  legislature  to  certify  to  the  comptroller  the  compen- 
sation due  to  a  member  of  the  legislature,  and  a  writ  of 
mandamAis  was  allowed  to  compel  him  to  do  so.1  The  law 
specified  that  the  election  or  appointment  of  all  officers, 
elected  or  appointed  by  the  legislature  should  be  certified 
by  the  speakers  of  both  houses  thereof,  and  they  were  com- 
pelled so  to  do.2  The  law  required  the  legislature,  assem- 
bled in  joint  session,  to  open  and  publish  the  returns  of 
the  election  of  the  executive  state  officers.  The  speaker 
of  the  house,  to  whom  such  returns  had  been  sent  sealed 
and  unopened,  refused  to  open  and  publish  them,  claiming 
that  contests  had  been  commenced  relative  to  the  election 
of  some  of  those  officers ;  that  evidence  had  been  taken  in 
the  contests,  and  that  such  contests  must  be  first  heard  and 
determined.  The  court  considered  the  duty  of  the  speaker 
in  the  premises  to  be  merely  ministerial,  and  that  the  al- 
lowance of  the  claim  of  the  speaker,  that  the  other  two 
state  departments  were  independent  of  any  control  by  the 
judiciary,  would  be  attended  with  most  disastrous  results ; 
that  the   elected  officers  would   have  no   remedy,  if  the 

i  Pickett,  Ex  parte,  24  Ala.  91.  2  State  v.  Moffitt,  5  Ohio,  358. 


§  107.]  MANDAMUS   TO   LEGISLATIVE    DEPAKTMENT.  127 

proper  tribunal  would  not  canvass  the  returns  nor  certify 
the  result;  that  elections  would  become  uncertain  in  re- 
sult, and  doubly  so  as  to  the  result  declared,  and  that  the 
payment  of  the  state's  indebtedness,  even  after  legislative 
appropriation,  would  be  absolutely  dependent  upon  the 
vacillating  will  of  approving  and  disbursing  officers.  The 
speaker  was  ordered  to  open  and  publish  the  returns.1  A 
mandamus  was  applied  for  to  compel  the  speaker  of  the 
house  of  representatives  to  send  a  certain  bill  to  the  senate, 
which,  it  was  claimed,  had  passed  the  house.  The  speaker 
had  decided  that  the  bill  had  not  passed,  and  the  house  had 
sustained  him  on  appeal.  The  court  stated  that  the  writ 
lies  only  for  the  performance  of  a  ministerial  duty,  but 
held  that  in  this  matter  the  house  had  exclusive  jurisdic- 
tion, and  the  writ  was  refused.2  When  there  is  a  dispute 
as  to  which  of  two  persons  has  been  elected  to  the  legisla- 
ture, the  courts  will  not  consider  the  question,  if  it  is  shown 
that  a  contest  relative  thereto  is  pending  in  that  body.  If 
no  contest  is  pending,  and  the  court  is  called  upon  to  en- 
force collateral  and  incidental  rights  belonging  to  a  mem- 
ber of  the  legislature,  as  to  compel  the  state  auditor  to 
audit  and  settle  his  accounts,  it  will  accept  the  certificate 
of  election,  issued  by  the  legally  constituted  canvassing 
board,  as  decisive  of  the  question  of  membership.3  The 
clerks  of  the  respective  houses  of  a  territorial  legislature 
were  required  by  law  to  file  the  minutes  of  their  proceed- 
ings with  the  secretary  of  the  territory.  The  speaker  of 
one  of  the  legislative  bodies  claimed  that  the  minutes  so 
filed  contained,  besides  the  proper  records,  the  proceedings 
of  two  illegal  bodies,  which  professed  to  be  the  legislature, 
and  that  such  proceedings  took  place  after  the  legal  period 
for  the  session  of  the  legislature  had  expired,  and  after  the 
legislature  had  adjourned  sine  die.  He  sought  to  have  the 
court  take  the  minutes  as  filed  in  its  control,  cause  them  to 
be  corrected,  and  then  to  be  refiled  with  the  secretary  of 

i  State  v.   Elder    (Neb.,  Jan.    14,        2  Echols,  Ex  parte,  39  Ala.  698. 
1891),  47  N.  W.  Rep.  710.  3  State  v.  Kenney,  9  Mont.  389. 


128  MANDAMUS    TO    LEGISLATIVE    DEPARTMENT.  [§  107. 

the  territory  as  the  only  true  minutes,  and  to  order  the  im- 
proper minutes  to  be  expunged.  The  court  said  that  one 
branch  of  government  could  not  encroach  on  the  domain 
of  another,  and  that  it  was  not  the  function  of  a  court  to 
make  up  the  records  of  the  proceedings  of  legislative  bodies.1 
For  the  reasons  just  given  the  secretary  of  a  territory  was 
not  required  to  record  a  report  made  by  the  president  of 
the  council  of  the  territorial  legislature  as  a  part  of  the 
proceedings  of  the  council,  nor  to  expunge  from  the  records 
a  part  of  the  report  of  the  proceedings  of  the  council 
made  by  its  clerk.2  "Where  by  mandamus  it  was  sought  to 
compel  the  secretary  of  state  to  deliver  the  returns  of  the 
election  to  the  speaker  of  the  house  of  representatives  to 
be  laid  before  that  body,  and  the  return  of  the  secretary 
of  state  stated  that  he  had  delivered  the  returns  to  the 
speaker  of  the  house,  who  was  another  person,  presiding 
over  another  body,  the  court  determined  which  body  was 
the  legal  house  of  representatives,  and  that  a  mandamus 
was  proper  for  the  purpose  desired.3 

1  Burkhart  v.  Reed  (Idaho,  March    11,  1889),  22  Pac.  Rep.  8.    Affirmed 
11,  1889),  22  Pac.  Rep.  1.    This  case    on  appeal,  134  U.  S.  861. 

was  affirmed  on  appeal,  134  U.  S.        3  State  v.  Hayne,  8  Rich.  (N.  S.) 
361.  367. 

2  Clough  v.  Curtis  (Idaho,  March 


CHAPTER  10. 

MANDAMUS  TO   PUBLIC  OFFICERS   AND   PUBLIC   CORPORA- 
TIONS. 

§  108.     A  mandamus  lies  to  all  public  officers  and  public  corporations  to 
perform  any  ministerial  duty. 

109.  When  suits  do,  not  accomplish  the  act  desired,  a  mandamus 

lies  —  Illustrations. 

110.  Mandamus  not  issue  when  officers  have  a  discretion  as  to  the 

manner  or  matter  of  doing  the  act. 

111.  Mandamus  to  the  governing  board  of  a  county. 

112.  Acts  of  county  authorities,  involving  judgment  and  discretion. 

113.  Mandamus  to  city  councils. 

114.  Mandamus  to  officers  of  taxes. 

115.  Mandamus  relative  to  public  schools. 

116.  Mandamus  to  enforce  duties  relative  to  the  public  roads. 

117.  Mandamus  relative  to  letting  public  contracts. 

118.  Mandamus  relative  to  the  approval  of  bonds  of  officers. 

119.  Mandamus  about  issuing  licenses. 

120.  Mandamus  to  police  officials. 

121.  Mandamus  to  clerk  of  the  county  board. 

122.  Mandamus  to  the  clerk  of  a  court. 

123.  Mandamus  to  a  sheriff. 

124.  Mandamus  to  a  register  of  deeds. 

125.  Mandamus  to  keep  public  offices  in  the  proper  places. 

126.  Mandamus  to  auditing  officers. 

127.  Mandamus  to  assessors  of  taxes. 

128.  Mandamus  relative  to  subscriptions  by  municipal  corporations 

to  railroads,  etc. 

129.  Mandamus  to  levy  a  tax  to  pay  debts,  when  authority  to  make  a 

levy  is  granted  or  is  implied. 

130.  Claims  must  be  legally  established  before  a  mandamus  will  issue 

to  compel  the  levy  of  a  tax  for  their  payment. 

131.  In  a  mandamus  on  a  judgment,  is  the  latter  conclusive? 

132.  In  a  mandanms  to  levy  a  tax  to  pay  a  demand,  public  necessities 

must  be  first  considered. 

133.  Mandamus  to  collectors  of  revenue. 

134.  Mandamus  to  obtain  possession  of  public  funds. 

135.  Mandamus  to  disbursing  officers. 

136.  Mandamus  concerning  the  payment  of  salaries. 

9 


130  TO   PUBLIC    OFFICERS   AND   CORPORATIONS.       [§§  108,  109. 

§  108.  A  mandamus  lies  to  all  public  officers  and  public 
corporations  to  perform  any  ministerial  duty. —  As  already 
stated,  the  writ  of  mandamus  will  issue  to  public  officers, 
public  boards  and  public  corporations,  and  all  others  exer- 
cising public  authority,  to  compel  the  performance  of  such 
official  acts  as  clearly  pertain  to  their  duty  and  are  of  ab- 
solute obligation.1  The  duties  referred  to  must  call  for  no 
discretion  or  exercise  of  official  judgment.2  Whether  a 
duty  is  merely  ministerial,  or  calls  for  the  exercise  of  dis- 
cretion or  judgment,  is  a  matter  for  the  courts  to  decide; 
and  since  the  range  of  duties  is  almost  infinite,  and  the  dis- 
cretion granted  in  each  case  depends  upon  the  local  law, 
the  decisions  of  the  courts  cannot  be  expected  to  be  in  har- 
mony. We  will  call  attention  to  a  number  of  cases,  involv- 
ing a  variety  of  questions,  which  will  illustrate  the  nature 
of  the  subjects  and  duties  on  account  of  which  this  writ 
has  been  invoked.  Since  the  principles  and  application 
thereof  are  the  same,  whether  the  writ  be  sought  against 
a  public  officer  or  a  public  board  or  a  public  corporation, 
and  the  writ  in  the  two  latter  cases  being  often  issued 
against  the  individuals  by  name,  who  compose  the  public 
board  or  the  part  of  the  public  corporation  charged  with 
the  performance  of  the  duty  sought,  we  will  make  no  dis- 
tinction between  them  relative  to  the  duties  on  account  of 
which  the  writ  of  mandamus  has  been  applied  for.  The 
legality  of  the  incorporation  of  a  public  corporation  cannot 
be  questioned  in  ^mandamus  proceeding.3 

§109.  When  suits  do  not  accomplish  the  act  desired, 
a  mandamus  lies  —  Illustrations. —  Though  corporations 
and  ministerial  officers  are  liable  to  be  sued  for  neglect  of 
duty,  yet  the  writ  of  mandamus  will  go  to  compel  a  proper 
execution  of  their  duties,  such  suits  not  accomplishing  the 

i  Arberry  v.  Beavers,  6  Tex.  457 ;  2  Willeford  v.  State,  43  Ark.  62. 

People  v.    Inspector  State  Prison,  3  People  v.  Schools  (Board  Trust- 

4  Mich.  187;  People  v.  State  Treas-  ees),  111  111.  171 ;  Hon  v.  State,  89 

urer,  24  Mich.  468 ;  Runion  v.  Lati-  Ind.  249. 
mer,  6  S.  C.  126. 


§   109.]  TO    TUBLIC    OFFICERS    AND    CORPORATIONS.  131 

object  desired  —  the  fulfillment  of  the  duty.1     The  writ  has 
been  issued  to  the  mayor  of  a  city :  to  sign  an  order  for 
the  payment  of  a  claim  against  the  city ;  -  to  sign  a  contract 
made  in  pursuance  of  the  charter  and  ordinances  of  the 
city ; s  to  countersign  a  warrant  of  the  comptroller  to  pay 
money  as  ordered  by  the  board  of  supervisors ; 4  and  to  issue 
and  sell  city  bonds  and  to   pay  into  court  the  adjudged 
value  of  lands  condemned  for  wharf  purposes.5     The  writ 
has  been  issued :  to  compel  an  officer  to  prepare  and  sign 
the  bonds  of  a  municipality  for  lands  purchased  by  it,  as 
directed  by  law ; fi  to  compel  the  canal  appraisers,  on  ap- 
peal from  them,  to  make  return  of  their  proceedings  to  the 
canal  board; 7  to  compel  a  probate  judge  to  issue  his  war- 
rant to  the  sheriff  or  some  suitable  person  to  return  to  his 
township  a  patient  discharged  from  the  insane  asylum ; 8  to 
compel  the  commissary  to  admit  a  party  as  the  deputy  of 
the  register  of  the  court  of  the  archbishop  of  York;9  to 
compel  officers  to  keep  their  public  books  in  a  certain  way 
in  accordance  with  the  statute;10  to  compel  the  steward, 
who  keeps  the  corporate  books,  to  produce  them  at  the 
corporate  meeting  to  enter  therein  the  elections  of  their 
members;11  to  compel   a   municipal  officer  to  submit  his 
books  of  account  to  the  officers  authorized  to  inspect  them ; 12 
to  compel  the  proper  officer  to  put  the  corporate  seal  to 
the  certificate  of  election  of  its  recorder ; 13  to  make  the 
keeper  of  the  rolls  furnish  the  superintendent  of  public 
printing  with  the  manuscript  of  all  bills  passed,14  and  to 

i  State  v.  Wilson,  17  Wis.  687 ;  8  State  v.   Burgoyne,  7  Ohio  St 

McCullough  v.  Brooklyn  (Mayor),  153. 

23  Wend.  458 ;  People  v.  Mead,  24  9  Rex  v.  Ward.  2  Str.  893. 

N#  y  114.  10  State  v.  Eberliardt,  14  Neb.  201. 

2  State  v.  Ames,  31  Minn.  440.  »  Calne  (Borough),  Case  of,  2  Stra. 

»  State  v.  Ricord,  35  N.  J.  L.  396.  948. 

*  People  v.  Opdyke,  40  Barb.  306.  12  Keokuk    (City)  v.  Merriam,  44 

5  Duncan  v.  Louisville  (City),  8  Iowa,  432. 

Bush,  98.  13 King  v.  York  (Major),  4  T.  R 

6  People  v.  Brennan,  39  Barb.  522.     699. 

^  People  v.  Canal  Appraisers,  73      "  Wolfe  v.  McCaull,  76  Va.  876. 
N.  Y.  443. 


132  TO   PUBLIC    OFFICERS    AND   CORPORATIONS.  [§  110. 

compel  him  to  strike  from  the  rolls  any  act  which  the  court 
decides  is  not  law ; l  to  compel  a  constable  to  receive  county 
warrants  in  payment  of  fines,  as  provided  Iry  law ; 2  to  com- 
pel a  subordinate  officer  to  obey  the  decision  of  a  superior 
officer  who  has  appellate  jurisdiction  over  him ; 3  to  compel 
a  county  judge  to  appoint  appraisers  to  assess  the  damages 
for  condemning  a  right  of  way;4  to  compel  a  board  of 
trustees,  who  appointed  the  appraisers  to  assess  the  dam- 
ages for  the  appropriation  of  land,  to  certify  the  proceed- 
ings upon  appeal  to  the  circuit  court ;  5  and  to  compel  the 
clerk  of  the  court  to  file  certain  resolutions  of  the  various 
school  boards  making  a  city  one  school  district.6  When  a 
mandamus  is  sought  to  compel  a  city  to  remove  an  ob- 
struction from  an  alley,  which  was  placed  there  by  a  rail- 
road company  with  the  consent  of  the  city,  it  must  be  af- 
firmatively shown  that  an  unlawful  use  is  being  made  of 
the  alley.7 

§  110.  Mandamus  not  issued  when  officers  have  a  dis- 
cretion as  to  the  manner  or  matter  of  doing  the  act. — 
Where,  however,  the  law  allows  a  discretion  as  to  the  man- 
ner or  matter  of  doing  a  certain  act,  a  mandamus  will  not 
issue  to  compel  its  performance.  On  the  ground  that  a 
discretion  was  allowed  in  the  matter,  a  writ  of  mandamus 
has  been  refused :  to  compel  the  board  of  liquidators  to  sell 
state  bonds  in  order  to  bond  the  floating  state  debt ; 8  to 
compel  the  issuance  of  patents  for  donation  lands  to  partic- 
ular state  soldiers ; 9  to  compel  the  state  board  to  let  the 
contract  for  public  printing,  when  the  board  is  allowed  to 
award  it  only  to  responsible  persons  or  to  those  who  file  a 


1  Wise  v.  Bigger,  79  Va.  269.  5  Wabash,  etc.  Canal  (Trustees)  v. 

*  Lusk  v.  Perkins,  48  Ark.  238.  Johnson,  2  Ind.  219. 

3  United  States  v.  Raum,  135  U.  S.        6  Com.  v.  James,  135  Pa.  St.  480. 
200 ;  United  States  v.  Black,   128        7  State  v.  New  Albany  (City),  127 

U.  S.  50.  Ind.  221. 

1  Illinois  C.  R.  R.  v.  Rucker,  14        8  State  v.  Warmoth,  23  La.  An. 

111.  353.  76. 

•Com.  v.  Cochran,  6  Binn.  456. 


§111.]  TO    PUBLIC    OFFICERS   AND    CORPORATIONS.  133 

satisfactory  bond ; 1  to  compel  the  commissioners  of  a  bank- 
rupt to  give  a  certificate  of  conformity;2  to  compel  the 
election  of  managers  of  an  alms-house  so  as  to  leave  three 
of  the  old  managers;3  to  compel  the  mayor  and  capital 
burgesses  to  remove  a  capital  burgess  for  non-residence ;  * 
to  review  the  action  of  a  city  in  refusing  to  cause  an  im- 
provement of  a  street  to  be  made,  and  to  be  paid  for  out 
of  the  general  funds ; 5  to  compel  the  justices  to  nominate 
a  particular  justice  as  one  of  the  three  to  be  nominated  to 
the  governor,  out  of  whom  he  selects  a  sheriff ;  6  or  to  compel 
the  mayor  to  execute  leases  for  coal  lands  of  the  Girard  es- 
tate to  certain  persons,  who  had  been  accepted  as  suitable 
by  the  superintendent  of  those  lands  under  the  supervision 
of  the  committee  of  the  council.7 

§  111.  Mandamus  to  the  governing  board  of  a  county. 
The  writ  of  mandamus  lies  to  compel  the  tribunal  or  body 
which  manages  the  affairs  of  a  county  to  discharge  its  du- 
ties, but  the  writ  can  only  require  the  performance  of  acts 
which  such  body  is  authorized  by  law  to  perform.8  When 
the  county  commissioners  without  authority  of  law  em- 
ployed an  attorney,  a  mandamus  to  compel  them  to  pay 
him  out  of  the  county  treasury  was  refused.9  The  county 
supervisors  had  no  jurisdiction  to  compel  towns  to  pay 
money  in  compensation  for  wrongful  acts  of  town  officers, 
and  a  mandamus  was  refused  to  compel  them  to  audit  and 
allow  such  a  claim  and  to  direct  it  to  be  levied  on  the  town 
or  county.10  On  the  other  hand,  as  being  within  the  range 
of  their  ministerial  duties,  the  county  authorities  have  been 
compelled  by  this  writ :  to  accept  the  lowest  bid  received 

i  State  v.  Robinson,  1  Kans.  188.        GFrisbie  v.  Wythe  Co.  (Just),  2 

2  Respublica  v.  Clarkson,  1  Yeates,    Va,  Cas.  92. 

46-  i  Com.  v.  Henry,  49  Pa,  St  530. 

3  Respublica     v.     Guardians     of        8  Bass  v.  Taft,  137  U.  S.  458. 
Poor,  1  Yeates,  476.  9  State  v.  Franklin  Co.  (Coni'rs), 

*  King  v.  West  Looe  (Mayor),  5  21  Ohio  St  648. 

Dow.  &  R.  414  10  People  v.  Chenango  Co.  (Sup'rs), 

5  Michigan  City  (Mayor)  v.  Rob-  11  N.  Y.  563. 
erts,  34  Ind.  471. 


13 Jr  TO    PUBLIC    OFFICERS   AND    CORPORATIONS.  [§  111. 

for  the  sale  of  town  warrants  j1  to  reconvene  and  declare  a 
resolution  carried  and  to  so  record  the  fact,  after  the  reso- 
lution had  been  declared  to  be  defeated  and  the  record  so 
made  up,  through  a  misunderstanding  of  the  requirements 
of  the  law ; 2  to  accept  and  approve  a  sheriff's  bond,  which, 
they  claimed  erroneously,  was  offered  too  late ; 3  to  correct 
an  erroneous  assessment  and  to  refund  the  money  paid, 
under  an  order  of  court  so  recommending  to  them ; 4  to  ap- 
portion a  debt  upon  the  taxable  property  of  the  county ; 5  to 
make  a  highway  on  the  failure  of  a  town  to  do  so  within  a 
certain  time ; 6  to  lay  off  and  sell  lots  at  the  new  county 
seat;7  to  appropriate  a  certain  sum  for  the  construction  of 
a  bridge,  the  law  relative  thereto  having  been  fully  com- 
plied with  ; 8  to  refund  the  amount  of  a  fine  which  was  paid 
to  avoid  imprisonment,  after  the  judgment  imposing  the 
fine  had  been  reversed  on  appeal ; 9  to  admit  to  record  a  deed 
of  emancipation  of  slaves,10  and  to  certify  that  such  slaves, 
who  were  then  before  them,  were  of  sound  mind  and  body 
and  between  certain  ages  as  appeared  to  them  ;"  to  divide  a 
township  after  the  requirements  of  the  statute  were  com- 
plied with  and  the  proper  petition  was  presented ; 12  to  set 
apart  certain  funds  in  their  treasury  for  a  specific  purpose 
as  required  by  law ; 13  to  issue  warrants,  when  vacancies  oc- 
cur in  township  offices,  to  the  municipal  officers  of  the  town 
to  fill  such  vacancies ; 14  to  audit  the  accounts  against  the 
county,  incurred  by  its  clerk,  and  to  issue  its  warrant  there- 
for ; 15  and  to  admit  the  report  of  the  surveyor  relative  to 

i  Mau  v.  Liddle,  15  Nev.  271.  8  Supervisors  (Board)  v.  People,  24 

2  People  v.  Brinkerhoff,  68  N.  Y.  Ill  Ap.  410. 
259  fl  People   v.   Wayne    Co.    (Board 

*  State  v.  Lewis,  10  Ohio  St.  128.  AucL),  41  Mich.  223. 

4  People  v.  Ulster  Co.  (Sup'rs),  65       10  Manns  v.  Givens,  7  Leigh,  689. 
N  Y.  300.  n  Dawson  v.  Thruston,  2  Hen.  & 

5  People  v.  Jackson  Co.  (Sup'rs),  M.  132. 

24  Mich.  237.  12  He niT  v-  Taylor>  57  Iowa>  ~2- 

"  e  Richards  v.  Bristol  (Com'rs),  120       13  Humboldt  Co.  v.  Churchill  Co., 
Mass.  401.  6  Nev.  30. 

?  State  v.  McMillan,  8  Jones,  174.       14  Rose  v.  Co.  Com'rs,  50  Me.  243. 

15  Boone  Co.  v.  Todd,  3  Mo.  140. 


§  111.]  TO    PUBLIC    OFFICERS   AND   CORPORATIONS.  135 

land  sold  for  taxes.1  Since  this  writ  lies  to  compel  officers, 
possessing  discretionary  or  judicial  power,  to  consider  and 
pass  on  questions  submitted  to  them,  it  has  been  issued  to 
the  county  authorities :  to  pass  on  and  to  audit  claims  against 
the  county  presented  to  them  for  allowance;2  to  order  the 
plat  of  a  survey  of  land  sold  for  taxes  and  not  redeemed, 
and  the  certificate  of  the  surveyor  thereto,  to  be  recorded, 
if  they  find  it  to  be  correct;3  to  determine  the  amount  due 
to  the  sheriff  for  collecting  the  taxes ; 4  to  fix  the  rate  for 
the  use  of  water ; 5  when  land  has  been  assessed  in  two  town- 
ships, to  determine  what  taxes  are  to  be  refunded  and  by 
what  township;6  to  equalize  an  assessment,  made  because  a 
prior  assessment  had  omitted  certain  propert}7 ; 7  to  compel 
them  to  summon  a  jury  to  assess  the  damages  incurred  by 
the  appropriation  of  land  for  a  railroad ; 8  to  furnish  road 
overseers  with  necessary  implements  to  put  roads  in  proper 
condition ; 9  to  hear  and  adjust  a  sheriff's  claim  for  fees, 
which  they  had  refused  to  do,  unless  he  would  release  all 
errors  in  a  judgment  then  pending  on  appeal  which  the 
county  had  obtained  against  him,  which  he  had  declined 
to  do;10  to  settle  a  claim  against  the  county,  and  to  levy 
a  tax  to  pay  it ;  u  and  to  hear  and  determine  whether  cer- 
tain taxes  have  been  illegally  assessed  by  the  towns  and 
paid,  and  to  cause  them  to  be  repaid  by  the  towns,  if  so 
illegally  assessed  and  paid.12  By  this  writ  the  county  au- 
thorities have  been  compelled:  to  build  a  bridge  according 

1  Randolph  v.  Stalnaker,  13  Grat.  7  Virginia,  etc.   R.  R.  v.  Orrnsby 
523.  Co.  (Com'rs),  5  Nev.  341. 

2  State  v.  Hamilton  Co.  (Com'rs),  s  Carpenter  v.  Bristol  Co.  (Com'rs), 
26  Ohio  St.  364 ;  People  v.  Delaware  21  Pick.  258. 

Co.  (Sup'rs).  45  N.  Y.  196;  Brady  v.  *  Monroe  Co.  (Sup'rs)  v.  State,  63 

New  York  (Sup'rs),  2  Sandf.  460.  Miss.  135. 

3 Delaney  v.  Goddin,  12  Grat  266.  io  Taylor,  Ex  parte,  5  Ark.  49. 

4  Koonce    v.  Jones  Co.  (Com'rs),  n  Madison  Co.  Court  v.  Alexander, 
106  N.  C.  192.  Walker,  523. 

5  Spring  Valley  W.  Co.  v.  Super-  12  People  v.  Otsego  Co.  (Sup'rs),  53 
visors  (Board),  61  Cal.  18.  Barb.  564 ;  People  v.  Herkimer  Co. 

6  People  v.  Essex  Co.  (Sup'rs),  70  (Sup'rs),  56  Barb,  452. 
N.  Y.  228. 


136  TO   PUBLIC   OFFICEKS   AND    CORPORATIONS.  [§  111. 

to  an  act  of  the  legislature ; 1  to  provide  a  house  of  refuge 
distinct  from  the  common  jail;2  to  complete  the  county 
building  as  required  bylaw;3  to  build  a  jail  — but  they 
were  allowed  their  discretion  as  to  the  kind,  size  and  cost 
of  the  jail,  and  the  quality  of  the  materials  used.4  The 
county  authorities  cannot  be  compelled  to  erect  county 
buildings  when  the  law  leaves  that  matter  to  their  discre- 
tion.5 When  the  county  authorities  are  required  to  pro- 
vide a  court-room,  a  jail,  etc.,  they  discharge  their  duty  by 
supplying  such  accommodations,  though  the  buildings  were 
not  erected  for  those  purposes.6  If  they  have  a  discretion 
as  to  when  they  will  erect  public  buildings,  they  may  stop 
the  construction  thereof,  and  cannot  be  compelled  by  man- 
damus to  allow  such  construction  to  proceed;  the  con- 
tractor, who  is  the  party  most  interested,  can  sue  the 
county  on  his  contract.7  County  authorities  have  been 
compelled  by  mandamus  to  subscribe  in  the  name  of  the 
county  for  railroad  stock,  as  authorized  by  popular  vote,8 
and  to  the  amount  of  money  collected  on  a  tax  voted  for 
that  purpose ; 9  they  have  also  been  required  to  issue  county 
bonds  to  a  railroad,10  and  to  a  contractor  for  the  construe- 
tion  of  a  road  in  accordance  with  the  provisions  of  an  act 
of  the  legislature,  after  due  acceptance  of.  the  road.11  When 
a  county  court  refuses  to  allow  a  claim  against  a  county,  a 
mandamus  will  not  lie,  since  there  is  a  remedy  by  a  suit 
against  the  county.12  When  the  county  board  is  called  upon 
to  act  judicially,  as  on  an  application  to  abate  the  taxes  of  an 

i  Com.   v.  Fairfax  Co.  (Just.),  2  »  Black,  Ex  parte,  1  Ohio  St.  30. 

Va.  Cas.  9 ;  Corn.  v.  Kanawha  Co.  8  Selma,  etc.  R.  R.,  Ex  parte,  45 

(Just.),  2  Va.  Cas.  499.  Ala.  696. 

2  Com.  v.  Hampden  (Sessions),  2  »  Pfister  v.  State,  82  Ind.  382. 
Pick.  414.  M>  Smith  v.  Bourbon  Co.,  127  U.  S. 

3  State   v.  Perry  Co.   (Com'rs),   5  105 ;  People  v.  Ohio  Grove  Town., 
Ohio  St.  497.  51  111.  191. 

*  People  v.  La  Salle  Co.  (Sup'rs)  H  Noble  Co.  (Com'rs)  v.  Hunt,  33 

84  111.  303.  Ohio  St.  169. 

r'  State  v.  Howell  Co.  Court,  58  ™  Crandall  v.  Amador  Co.,  20  Cal 

Mo.  583.  72;   State  v.  Floyd  Co.  (Judge),  5 

0  Black,  Ex  parte,  1  Ohio  St  30.  Iowa,  380 ;  Portwood  v.  Montgom- 


§  112.]  TO    PUBLIC    OIFICKKS    AND    CORPORATIONS.  137 

individual,1  the  writ  of  mandamus  will  not  lie.  An  assignee 
of  a  part  of  a  debt  due  from  the  county  was  refused  a  man- 
damus on  the  board  of  supervisors  to  issue  him  a  warrant, 
because  he  did  not  sustain  such  a  relation  to  the  respond- 
ents as  to  entitle  him  to  such  remedies.2  A  mandamus  to 
the  county  commissioners  to  enter  judgment  on  a  claim 
presented  to  them  for  services  as  county  auditor  was  re- 
fused, because  the  case  was  then  in  the  circuit  court  on 
appeal.3  "When  the  notice  to  the  voters  of  a  township  rel- 
ative to  voting  on  the  question  of  issuing  bonds  to  be  used 
in  improving  the  township  roads  did  not  comply  with  the 
law,  a  mandamus  was  refused  to  compel  the  county  super- 
visors to  issue  bonds,  in  accordance  with  the  request  of  the 
majority  of  the  voters,  as  evidenced  by  the  vote,  to  be  paid 
by  taxation  levied  on  the  township.4 

§  112.  Acts  of  county  authorities,  involving  judgment 
and  discretion.—  In  a  matter  wherein  the  county  board 
has  taken  action  and  exercised  its  discretion  and  judgment, 
in  accordance  with  the  general  rule  its  decision  cannot  be 
reviewed  by  the  writ  of  mandamus.  The  writ  has  been 
refused :  to  review  its  decision  in  granting  a  license  for  a 
ferry  where  there  were  two  applicants ; 5  in  determining  the 
compensation  due  to  a  constable  for  conveying  a  pauper 
from  one  town  to  another ; 6  in  appointing  collectors  of  taxes, 
after  rejecting  the  persons  returned  by  the  assessors ; 7  in 
deciding  whether  five  hundred  qualified  voters  had  joined 
in  a  petition  to  them  to  order  an  election ; 8  in  dismissing  a 
petition  to  them,  for  an  increase  of  damages  for  land  con- 
demned, for  want  of  prosecution ; 9  and  in  dismissing  a  peti- 

ery  Co.  (Sup'rs),  52  Miss.  523 ;  United  5  Oxford  Ferry  Co.  v.  Sumner  Co. 

States  v.  Buchanan  Co.,  5  Dil.  285.  (Com'rs),  19  Kans.  293. 

1  Gibbs  v.  Hampden  Co.  (Com'rs),  6  People    v.    Albany   (Sup'rs),  12 
19  Pick.  298.  Johns.  414. 

2  Foote  v.  Noxubee  Co.  (Sup'rs),  67  ■  Com.  v.  Perkins,  7  Pa.  St  42. 
Miss.  156.  8  state  v.  Eureka  Co.  (Com'rs),  8 

3  Lagrange  Co.  (Com'rs)  v.  Cutler,  Nev.  309. 

7  Ind.  6.  9  Davis  v.  County  Com'rs,  63  Me. 

4  McMahon    v.    San    Mateo    Co.    396. 
(Sup'rs),  46  Cal.  214. 


138  TO    PUBLIC    OFFICERS   AND    CORPORATIONS.  [§  113. 

tion  for  an  order  for  an  election  to  relocate  the  county  seat, 
when  the  board  had  struck  off  of  the  petition  some  of  the 
names  and  had  then  rejected  it  for  not  being  signed  by 
enough  petitioners.1 

§  113.  Mandamus  to  city  councils. —  This  writ  issues  to 
the  legislative  branches  of  municipal  corporations  to  com- 
pel the  performance  of  ministerial  duties  imposed  on  them. 
It  has  been  issued  to  the  common  council  of  a  city :  to  pass 
an  ordinance,  as  required  by  legislative  act,  to  create  a  pub- 
lic fund  for  the  erection  of  a  market ; 2  to   open  a  certain 
street  laid  out  by  them ; 3  to  consider  and  act  upon  the  nom- 
inations submitted  by  the  mayor  for  their  approval  under 
an  act  to  establish  a  board  of  public  works; 4  to  approve  a 
plat  of  land  laid  out  in  a  city  when  the  owner  had  fully 
complied  with  the  law ; 5  to  fix  the  bond  of  trustees  of  water- 
works as  required  by  law ; 6  and  to  pass  an  ordinance  to  levy 
a  tax  to  pay  a  judgment  against  the  city ; 7  and  by  this  writ 
the  two  councils  of  a  city  have  been  compelled  to  meet  in 
joint  session  in  order  to  appoint  such  heads  of  departments 
as  are  not  elected  by  the  people.8     Should  such  common 
council,  owing  to  diversity  of  views,  fail  to  pass  an  or- 
dinance  commensurate  with  the  duty  to   be   discharged, 
the  courts  will  not  be  satisfied  therewith,  but  will  compel 
the  members  of  such  council  to  come  to  an  agreement  and 
discharge  the  duty  imposed  upon  them.9     It  is  not  consid- 
ered proper  to  compel  the  aldermen  to  attend  the  meetings 
of  the  common  council  and  to  perform  their  general  official 
duties,  because  the  courts  are  not  created  to  conduct  the 
municipal  affairs  of  cities,  and  nothing  short  of  such  gen- 
eral supervision  could  reach  such  a  case.10 

i  State  v.  Nemaha  Co.,  10  Neb.  32.        6  Lafayette  (City)  v.  State,  69  Ind. 

2  People    v.    New    York    (Com.     218. 

Council),  45  Barb.  473.  "  People  v.  San  Francisco  (Sup'rs), 

3  State  v.  Orange  (Com.  Council),     21  Cal.  6G8. 

31  N.  J.  L.  131.  s  Lamb  v.  Lynd,  44  Pa.  St.  336. 

*  People  v.  Detroit  (Com.  Coun-        9  Com.  v.  Taylor,  36  Pa.  St.  263 ; 
cil),  29  Mich.  108.  People  v.  San  Francisco  (Sup'rs),  21 

6  State  v.  Chase,  42  Mo.  Ap.  343.     Cal.  668. 

io  People  v.  Whipple,  41  Mich.  548. 


§§  114,  115.]      TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  139 

§114.  Mandamus  to  officers  of  towns.— The  writ  of 
mandamus  has  been  used  to  compel :  a  town  to  raise  by  taxa- 
tion its  share  of  the  amount  required  for  a  joint-high  school ; l 
the  board  of  a  township  to  draw  its  warrant  on  the  township 
treasurer  for  damages  appraised  and  certified  on  account 
of  the  establishment  of  a  road ; 2  the  trustees  of  a  town,  to 
give  the  requisite  notice  for  the  election  of  their  succes- 
sors;3  the  supervisors  of  towns,  which  have  been  divided, 
to  meet  and  apportion  the  poor  and  the  moneys  of  their  re- 
spective towns,  and  to  re-assemble  and  correct  their  appor- 
tionment, if  at  their  meeting  they  have  only  partially  per- 
formed their  work,  omitting  the  disposition  of  a  particular 
pauper;4  the  president  of  the  trustees  of  a  village  to  sign 
the  bonds  of  the  village  issued  according  to  law ; 5  a  town 
clerk  to  countersign  township  bonds  issued  in   favor   of 
a  railroad  company ; 6  a  town  clerk  to  amend  his  record, 
if  there  is  any  error  in  it  arising  from  design,  mistake  or 
accident,7  or  if  it  does  not  record  the  votes  as  publicly 
declared  by  the  moderator,8  but  not  to  make  his  record 
show  a  different  vote  from  that  declared  by  the  modera- 
tor, since  it  is  his  duty  to  enter  up  the  record  of  votes  as 
given  in  by  the  moderator.9    When  upon  a  division  of  a 
township,  the  two  townships  have  divided  the  indebtedness 
of  the  old  township  between  them,  a  mandamus  will  lie 
to  the  board  of  one  to  issue  an  order  on  its  township  treas- 
urer for  the  payment  of  its  share  of  the  debt.10 

§  115.  Mandamus  relative  to  the  public  schools.— The 
public  schools  are  supported  and  controlled  by  the  govern- 
In  1736  a  mayor  was  required  to  *Sandlake  (Sup'rs)  v.  Berlin 
attend  the  assemblies  of  the  corpo-  (Sup'rs),  2  Cow.  485. 
ration  because  an  act  of  parliament  5  People  v.  White,  54  Barb.  622. 
so  required.  R.  v.  Everet,  Cas.  6  Houston  v.  People,  55  III  398 ; 
Temp.  Hardw.  261.  People  v.  Cline,  63  III  394 

•Joint  F.   H.  School    v.    Green        7  Boston  T.  Co.  v.  Pomf  ret  (Town), 
Grove  (Town),  77  Wis.  532.  20  Conn.  590. 

2  People  v.  La  Grange  (Tp.  Board),        8  Hill  v.  Goodwin,  56  N.  H.  441. 
2  Mich.  187.  9Bell  v.  Pike,  53  N.  H.  473. 

3  People  v.  Fairbury  (Town),  51       w  Marathon     (Town)   v.     Oregon 
HI,  i49#  (Town),  8  Mich.  372. 


140  TO   PUBLIC    OFFICERS    AND    CORPORATIONS.  [§  115. 

merit,  and  are  managed  by  public  officers,  and  the  writ  of 
mandamus  has  often  been  used  to  compel  the  performance 
of  duties  connected  therewith.  This  writ  has  been  used  to 
restore  pupils  who  have  been  improperly  excluded  from  the 
public  schools  under  a  rule  made  by  the  board  of  directors 
without  authority.1  "Where  an  applicant  for  admission  to 
a  college  supported  by  the  government  was  refused  ad- 
mission, unless  he  would  first  separate  himself  from  a 
society,  which  was  not  immoral  a  mandamus  was  issued 
ordering  his  admission,  if  he  was  otherwise  eligible,  such  reg- 
ulation being  held  to  be  unreasonable  and  void.2  By  this  writ 
teachers  in  the  public  schools  have  compelled  the  disbursing 
officers  for  the  schools  to  pay  them  their  salaries,3  or  have 
compelled  the  proper  officers  to  give  them  warrants  there- 
for on  the  disbursing  officers.4  School  directors  are  not  per- 
sonally liable  on  their  contracts  as  such  directors,5  and 
where  the  funds  of  a  school  board  were  held  by  a  city  treas- 
urer, and  paid  out  by  him  on  drafts  issued  by  the  school 
board,  a  creditor  was  allowed  by  a  mandamus  proceeding 
to  prove  up  his  claim,  and  to  obtain  an  order  for  the  school 
board  to  issue  to  him  a  draft  on  the  city  treasurer  for  the 
amount  found  to  be  due  to  him.6  A  teacher  of  a  public  school, 
who  has  been  removed  contrary  to  law  by  the  school  di- 
rectors, may,  by  mandamus,  compel  them  to  restore  him  to 
his  position.7  This  writ  has  been  issued  to  compel  the  school 
directors:  to  supply  the  schools  required  by  law  to  the 
children  in  their  districts;8  to  allow  the  pupils  to  use  cer- 
tain text-books ; 9  and  to  introduce  into  the  schools  the  text- 
books adopted  by  the  proper  authority.10    In  such  proceed- 

1  Perkins  v.  Ind.  School  District,        6  Raisch  v.  Board  of  Education, 
56  Iowa,  476 ;  State  v.  Osborne,  24    81  Cal.  542. 

Mo.  App.  309.  "  Morley  v.  Power.  73  Tenn.  691. 

2  State  v.  White,  82  Ind.  278.  §  Hancock  v.  Perry  (Dist.  Town.), 

3  Martin  v.  Ell  wood,  35  Minn.  309 :     78  Iowa,  550. 

Martin  v.  Tripp,  51  Mich.  184;  Ar-  9  State    v.   Columbus  (Board    of 

rington  v.  Cotton,  1  Baxt.  316.  Education),  35  Ohio  St  368. 

*Apgar  v.  Trustees,  34  N.  J.  L.  ™  State  v.  Springfield  (School  Di- 

308.  rectors),  74  Mo.  21. 

o  Meadows  v.  Nesbit.  80  Tenn.  486. 


§115.]  TO    PUBLIC   OFFICERS    AND    CORPORATIONS.  141 

inffs,  it  has  been  decided  that  children  cannot  be  excluded 
from  the  public  schools  by  reason  of  their  color.1  Whether 
the  school  authorities  may  provide  separate  schools  for 
colored  children,  and  exclude  them  from  the  other  schools,  is 
a  question  on  which  the  courts  are  in  conflict.2  In  accord- 
ance with  the  provisions  of  the  law,  towns  will  be  required 
by  mandamus  to  appropriate  a  certain  proportion  of  the 
taxes  to  support  common  schools.3  Where  the  school  au- 
thorities are  allowed  a  discretion,  a  mandamus  does  not  lie 
to  control  such  discretion.  They  will  not  be  required :  to  ap- 
prove of  a  school  teacher; 4  to  issue  a  teacher's  certificate;5 
to  approve  of  the  bill  of  a  school-master  for  educating  poor 
children;6  or  to  admit  a  boy  to  the  public  schools,  because 
they  assigned  an  untenable  reason  for  his  rejection,  when 
they  were  not  required  to  assign  any  reason  for  such  re- 
jection.7 In  matters  involving  discretion,  school  officers, 
like  all  others,  may  be  required  to  consider  and  come  to  a 
decision  thereon.8  Where  the  action  of  the  committee  of 
a  school  district  was  irregular  in  not  holding  the  sessions 
6f  the  school  in  the  school-house,  but  there  was  no  danger 
of  increasing  the  taxes  thereby,  the  school  term  was  nearly 
out,  and  the  change  was  but  temporary,  the  court,  in  its 
discretion,  refused  to  require  them  to  keep  the  school  in  the 
school-house.9  A  person  who  had  obtained  a  judgment 
against  a  district  township  upon  an  order  on  the  school- 
house  fund,  to  whom  the  school  directors  had  issued  an 
order  upon  their  treasurer  for  the  payment  of  his  judgment, 

i  Smith  v.  Ind.  School  District,  40        3  Hall    v.    Somersworth    (Select- 
Iowa,   518;    Dove    v.   Ind.    School    men),  39  N.  H.  511. 


District,    41    Iowa,   689;    State    v. 


Duffy,  7  New  342 ;  People  v.  Detroit    W.  Va.  227 


Board  of  Education,  18  Mich.  400 
Ward  v.  Flood,  48  Cal.  30. 
2  Pro:  State  v.  Duffy,  7  Nev.  342 


4  Wintz  v.  Board  of  Education,  28 


5  Bailey  v.  Ewart,  52  Iowa,  111. 

6  Com.  v.  County  Commissioners, 
5  Binn.  536. 


Ward  v.  Flood,  48  Cal.  36.    Contra,        7  State  v.  Joint  School  District,  65 
Smith    v.    Ind.  School  District,  40    Wis.  631. 

Iowa,  518;  Dove  v.  Ind.  School  Dis-        8  Alhin  v.  Ind.  District  (Board  of 
trict,  41  Iowa,  689.  Directors),  58  Iowa,  77. 

» Colt  v.  Roberts.  28  Conn.  330. 


112  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  [§  115. 

was  refused  a  mandamus  to  compel  payment  of  his  claim 
out  of  the  general  school  fund  to  the  exclusion  of  other 
holders  of  orders  who  had  not  obtained  judgments.    He  was 
entitled  to  a  mandamus  for  his  pro  rata  share.     His  judg- 
ment only  entitled  him  to  levy,  if  he  could  find  what  was 
not  exempt,  or  to  a  mandamus  to  compel  the  levy  of  a  tax 
to  pay  it.1     Where  a  school  district,  which  is  by  law  a  cor- 
poration, orders  the  school  committee  to  restore  a  teacher 
whom  they  have  removed,  they  are  bound  to  obey,  and 
may  be  compelled  by  mandamus  to  make  such  restoration.2 
"Whenever  orders  are  issued  in  compliance  with  law  against 
the  treasurer  of  a  school  district,  and  he  has  funds  in  his 
hands  applicable  thereto,  he  will  be  compelled  by  this  writ 
to  pay  them.3     The  writ  of  mandamus  will  not  be  granted 
in  matters  relating  to  public  schools,  when  the  public  inter- 
ests will  suffer  thereby.     The  courts  had  a  discretion  in 
many  cases  in  granting  this  writ,  and  they  will  compel  pri- 
vate interests  to  yield  to  public  interests,  and  will  refuse 
the  writ,  if  the  grant  thereof  will  prejudice  the  interests  of 
the  public.     In  accordance  with  law,  a  committee  of  teach- 
ers selected  a  certain  series  of  text-books  to  be  used  in  the 
public  schools  of  a  certain  county,  and  it  became  the  duty 
of  the  superintendent  of  the  county  schools  to  contract 
with  the  publishers  therefor.    Subsequently  the  state  board 
of  education,  who  assumed  that  the  committee  had  failed 
to  adopt  a  complete  list    of  books,  ordered  the   superin- 
tendent to  reconvene  the  committee  for  that  purpose.    The 
superintendent  called  the  committee  together  again,  and 
appointed  substitutes  for  those  members  who  refused  to  at- 
tend.    The  new  committee  then  rescinded  the  prior  action, 
and  adopted  a  new  series  of  books.     The  new  books  were 
supplied ;  the  patrons  of  the  schools  bought  them  for  their 
children ;  they  were  used  in  the  schools,  and  the  teachers 
were  ordered  to  teach  from  them.     The  publishers  of  the 

J  Chase  v.  Morrison,  "40  Iowa,  620.     Mich.    170 ;  Maher    v.  State  (Neb., 
2Gilman  v.  Bassett,  33  Conn.  298.    July  1,  1891),  49  N.  W.  Rep.  436. 
3  Phillips    v.    School  District,  79 


§  116.]  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  143 

first  series  of  books  asked  for  a  mandamus  to  compel  the 
county  superintendent  to  contract  with  them  for  a  supply 
of  their  books.  Though  the  court  admitted  the  justness  of 
the  claim  of  the  relators,  yet,  owing  to  the  complications 
and  the  evil  consequences  likely  to  arise  affecting  the  pub- 
lic interests,  it  refused  to  grant  the  writ.1 

§  116.  Mandamus  to  enforce  duties  relative  to  the 
public  roads. —  A  mandamus  is  the  proper  remedy  to  com- 
pel officials  to  perform  their  duties  concerning  public  roads.2 
It  lies  to  make  them  keep  streets  and  highways  in  repair, 
when  they  are  charged  with  such  duty,  or  full  power  in  such 
matters  is  bestowed  on  them,*  and  to  remove  obstructions 
therefrom  when  such  duty  is  imposed  upon  them.4  When 
the  law  provides  for  the  indictment  of  parties  who  have 
placed  obstructions  on  a  highway  and  for  the  removal  of 
such  obstructions  upon  the  conviction  of  such  parties,  a 
mandamus  to  the  proper  officers  to  compel  the  removal  of 
such  obstructions  will  be  denied,  because  the  law  has  pro- 
vided another  remedy.5  When  a  bridge  is  owned  by  a 
county  and  is  kept  open  for  public  travel,  the  county  is 
bound  to  keep  it  in  repair,  and  such  duty  will  be  enforced 
by  a  mandamus.6  In  accordance  with  their  duties  public 
officials  will  be  required  by  this  writ  to  build7,  to  complete,8 
and  to  maintain 9  public  bridges,  and  to  keep  them  in  re- 
pair,10 which  includes  a  new  superstructure,  or  a  rebuilding. 
or  a  replacing,  if  for  any  cause  it  may  become  necessary.11 

i  Effingham  v.  Hamilton,  68  Miss.  6  State  v.  Wood  Co.  (Sup'rs),  41 

523.  Wis-  28. 

2  State  v.  Putnam  Co.  (Com'rs),  23  ^  Com.  v.  Sheehan,  81  Pa.  St.  132 ; 
Fla.  632.  People  v.  San  Francisco  (Sup'rs1,  36 

3  Hammav  v.  Covington  (City),  3  Cal.  593. 

Mete.  (Ky.)  494;  St.  Clair  County  v.  8  Com.  v.  Loomis,  128  Pa.  St.  174. 

People,  85  111.  396 ;  People  v.  Bloom-  9  Pumphrey  v.  Baltimore  (Mayor), 

ington  (City),  63  111.  -07 ;  Uniontown  47  Md.  145. 

(Borough)  v.  Com.,  34  Pa.  St.  293.  io  Ottawa  (City)  v.  People,  48  111.  233. 
*Pafterson  v.  Vail,  43  Iowa,  142.  "  Howe  v.  Crawford  Co.  (Com'rs), 
5  Highways  (Com'rs)  v.  People,  73  47  Pa.  St  361 ;  State  v.  Gibson  Co. 
111.  203 ;  Reading  (Councils)  v.  Com.,  (Com'rs),  80  Ind.  478 ;  State  v.  De- 
ll Pa,  St  196.  maree,  80  Ind.  519. 


144  TO   PUBLIC    OFFICERS    AND   CORPORATIONS.  [§  116. 

This  writ  will  issue  to  compel  the  proper  officers  to  open  a 
highway  which  has  been  legally  established,1  to  lay  out  a 
road,2  and  to  grant  an  application  to  establish,  a  private 
road.3  As  being  ministerial  duties,  this  writ  has  been  issued : 
to  compel  the  county  commissioners  to  draw  a  warrant  for 
the  damages  assessed  by  a  jury  for  land  taken  for  laying 
out  a  highway,  though  measures  were  then  pending  to  dis- 
continue such  proceedings;4  to  compel  the  selectmen  of  a 
town  to  pay  the  damages  assessed  as  sustained  by  the  lay- 
ing out  of  a  highway,5  and  to  summon  a  jury  to  locate  a 
highway  after  the  jury  summoned  by  the  coroner  has  dis- 
agreed.6 The  writ  has  been  refused,  because  it  was  discre- 
tionary with  the  officers  to  act  or  not :  to  build  a  bridge, 
though  they  had  levied  one  year's  tax  to  assist  the  con- 
struction ; 7  to  proceed  in  opening  a  street,  the  property  hav- 
ing been  abandoned  before  a  tender  or  payment  of  the  dam- 
ages assessed ; 8  to  lay  out  a  road  when  public  convenience 
and  necessity  no  longer  required  it,  and  they  had  so  de- 
cided ; 9  to  compel  a  police  jury  to  make  a  contract  or  pass 
an  ordinance  authorizing  the  construction  or  shelling  of  a 
public  road ; 10  to  lay  out  a  road  when  they  reported  another 
road  substantially  identical  has  been  laid  out  and  accepted 
which  would  fully  satisfy  public  wants ; u  to  rebuild  a  bridge  ;12 
to  appropriate  money  to  rebuild  a  fallen  bridge,  when  they 
had  power  to  establish  or  change  highways,  and  such  bridge 
was  part  of  a  highway.13    Where  officers  have  a  discretion  as 

1  Moon    v.    Cort,  43    Iowa,    503 ;        6  Mendon  (Inhabitants)  v.  Worces- 
Sheaff  v.  People,  87  111.  189 ;  People    ter  County,  10  Pick.  235. 

v.  Davis,  93  111.  133 ;  Hall  v.  People,        7  State  v.  Henry  Co.  (Com'rs),  31 

57  111.  ?m ;  State  v.  Wellman,  83  Me.  Ohio  St.  211. 

282 ;  People  v.  Collins,  19  Wend.  56.        8  state  v.  Graves,  19  Md.  351. 

2  Sanger  v.  Kennebec  Co.  (Com'rs),        9  Hill  v.  Worcester,  4  Gray,  414. 
25  Me.  291.  10  State    v.    Jefferson  Co.  (Police 

•j  Steele  v.  County  Com'rs,  83  Ala.  Jury),  22  La.  An.  611. 

304.  n  Hitchcock     v.     Hampden     Co. 

4  Harrington    v.    Berkshire     Co.  (Com'rs),  131  Mass.  519. 
(Com'rs),  22  Pick.  263.  12  state  v.  Essex  .(Freeholders),  23 

5  Treat  v.  Middletown  (Town),  8  N.  J.  L.  214. 

Conn.  243.  13  State  v.  Morris,  43  Iowa,  192. 


§  117.]  TO   PUBLIC    OFFICEKS    AN'D   C0KP0KA.TI0NS.  145 

to  when  or  how  they  shall  repair  a  bridge,  though  a  man- 
damus may  issue  to  compel  them  to  repair  it,  yet  it  will 
not  direct  the  manner  of  performing  such  duty  but  will 
order  its  performance  generally.1  The  acceptance  or  rejec- 
tion by  the  county  commissioners  of  the  report  of  a  com- 
mittee, appointed  by  agreement,  pursuant  to  the  law,  to 
assess  the  amount  of  damages  sustained  by  the  laying  out 
of  a  public  road,  is  judicial,  and  a  mandamus  will  not  lie  to 
compel  the  acceptance  of  the  report.2  The  commissioners 
of  highways  were  not  required  to  make  a  contract  to  pave 
certain  streets  with  the  person  selected  by  a  majority  of 
the  property-owners,  since  they  were  only  required  so  to  do 
if  such  person  were  competent,  and  they  had  a  discretion 
in  judging  as  to  his  competency.3  A  mandamus  does  not 
lie  to  make  a  county  pay  a  part  of  the  expense  incurred  by 
a  town  in  making  a  highway,  when  the  county  commis- 
sioners, having  a  discretion  in  the  matter,  have  rejected  an 
application  for  such  a  payment.4  When  the  county  com- 
missioners refuse  to  locate  and  open  a  road  on  the  report 
of  the  reviewers,  a  mandamus  will  not  lie,  because  the 
statute  gives  a  remedy  by  appeal.5  Since  the  writ  only  lies 
to  enforce  a  duty,  commissioners  of  highways  will  not  be 
compelled  by  mandamus  to  lay  out  a  highway  so  as  to  com- 
mit trespass  or  to  subject  them  to  an  action  of  trespass," 
nor  be  required  to  certify  that  the  public  roads  are  kept  in 
good  repair  for  the  benefit  of  a  contractor,  though  the 
court  finds  that  such  is  the  fact,  since  such  officers  have  a 
discretion  in  that  matter.7 

§  117.  Mandamus  relative  to  letting  public  contracts. 
The  law  generally  requires  public  officers,  who  are  charged 

i  St.  Clair  (County)  v.  People,  85  5  Boone  Co.  (Com'rs)  v.  State,  38 

111.  396 ;  State  v.  Demaree,  80  Ind.  Ind.  193. 

519.  6  People  v.  Highways  (Com'rs),  27 

2  Kennebunk  T.  Bridge  Proprie-  Barb.  94 ;  Clapper,  Ex  parte,  3  Hill, 
tors,  Petitioners,  11  Me.  263.  458. 

3  Dickerson  v.  Peters,  71  Pa  St  53.  '  Seymour  v.  Ely,  37  Conn.  103. 

4  Ipswich,    Inhabitants   of,    Peti- 
tioners, 24  Pick.  343. 

10 


116  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  [§  117. 

with  letting  contracts  for  public  work,  to  accept  the  lowest 
bid  therefor,  and  to  make  the  contract  accordingly.  When 
such  bidder  has  fully  complied  on  his  part  with  the  require- 
ments of  the  law,  he  may  by  the  writ  of  mandamus  compel 
the  officer  to  make  the  contract  with  him.  The  writ  has 
been  considered  appropriate  in  relation  to  a  contract  for 
constructing  county  buildings,1  for  state  printing,2  for  ar- 
ticles to  be  purchased  for  use  of  the  county  for  building 
a  bridge,3  and  for  repairing  the  Erie  canal.4  "When  the  offi- 
cer is  allowed  a  discretion  in  the  matter,  the  writ  will  be 
refused.5  It  has  been  refused:  because  the  officer  could 
decline  the  bids  if  he  deemed  them  to  be  excessive  or  disad- 
vantageous to  the  state ; 6  because  the  officer  was  only  re- 
quired to  let  the  contract  to  the  lowest  bidder  if  he  was 
responsible,7  or  if  he  furnished  adequate  security ; 8  because 
the  contract  was  to  be  let  to  the  lowest  responsible  bidder, 
and  the  contract  in  the  case  required  for  its  fulfillment 
pecuniary  ability,  judgment  and  skill,9  and  because  in  the 
advertisement  the  right  to  reject  any  and  all  bids  was  re- 
served.10 Where  a  person  appeared  to  be  the  lowest  bidder 
by  the  aggregate  of  the  prices  of  the  various  articles  desired, 
but  to  be  a  higher  bidder  when  the  amounts  required  of  the 
various  articles  were  considered,  a  mandamus  in  his  favor 
was  refused.11  When  the  provision  that  the  contract  shall 
be  let  to  the  lowest  bidder  is  considered  to  be  directory 
merely,  the  writ  is  refused.12    When  after  the  receipt  of  the 

1  Boren  v.  Darke  Co.  (Com'rs),  21        6  People  v.  Contracting  Board,  33 
Ohio  St  311 ;  State  v.  Licking  Co.    N.  Y.  382. 

(Com'rs),  26  Ohio  St  531.  ?Hoole  v.  Kinkead,  16  Nev.  217. 

2  State  v.  Barnes,  35  Ohio  St  136 ;  8  People  v.  Fay,  3  Lansing,  398. 
State  v.  Printing  Com'rs,  18  Ohio  9  Com.  v.  Mitchell,  82  Pa.  St  343. 
St.  386 ;  American  C.  Co.  v.  Lick-  10  Hanlin  v.  Ind.  District  66  Iowa, 
ing  Co.  (Com'rs),  31  Ohio  St  415.  69. 

3  People  v.  Buffalo  Co.  (Com'rs),  u  State  v.  Hamilton  Co.  (Com'rs), 
4  Neb.  150.  20  Ohio  St  425. 

4  People  v.   Contract    Board,  46  12  Free  Press  Assoc  v.  Nichols,  45 
Barb.  254.  Vt  7. 

6  People  v.  Contracting  Board,  27 
N.  Y.  378. 


§  118.]  TO    PUBLIC    OFFICERS   AND   CORPORATIONS.  117 

bids  the  proposed  work  has  been  materiall}7  changed,  so 
much  so  that  the  public  interests  require  a  new  advertisement 
to  conform  to  such  changes,  the  courts,  exercising  their 
discretion  in  such  matters,  refuse  to  grant  the  writ.1  Some 
courts  have  refused  absolutely  to  issue  the  writs  in  such 
cases,  holding  that  the  bidder  has  no  fixed  absolute  right 
to  the  contract;  that  the  provision  about  letting  the  con- 
tract to  the  lowest  bidder  was  intended  for  the  protection 
of  the  public  and  not  of  the  bidder ;  that  if  any  injury  is  done 
it  is  to  the  public,  that  the  bidder's  rights  are  not  different 
from  those  of  the  public ;  that  his  profits  are  speculative  and 
at  most  he  has  a  claim  for  damages.2 

§  118.  Mandamus  relative  to  the  approval  of  Ibonds  by 
officers. —  In  many  cases  the  law  requires  bonds  from  offi- 
cers for  the  faithful  performance  of  their  duties,  and  from 
private  individuals,  that  in  certain  actions  or  occupations 
they  will  comply  with  the  requirements  of  the  law.  These 
bonds  are  necessarily  subject  to  the  approval  of  other  offi- 
cers. "Whether  in  the  consideration  of  these  bonds  the 
approving  officers  are  acting  ministerially,  and  therefore 
subject  to  a  review  of  their  decisions  by  the  courts  through 
the  writ  of  mandamus,  or  are  acting  judicially,  in  which  case 
their  decisions  rejecting  such  bonds  are  final,  is  a  question 
which  depends  very  much  upon  the  local  laws  in  each  case. 
Since  the  line  of  demarcation  between  ministerial  and 
judicial  acts  cannot  be  drawn,  we  can  only  refer  to  some 
decisions  on  the  subject,  and  it  will  be  found  that  the  courts 
differ  in  their  conclusions.  The  county  court,3  the  circuit 
court  clerk 4  and  the  judge  of  probate,5  in  approving  a  sher- 
iff's bond  act  ministerially.  The  committee  in  approving 
a  constable's  bond,6  the  chancery  clerk  in  approving  offi- 
cial bonds,7  the  comptroller  of  the  state  in  approving  the 

1  People  v.  Croton  Aqued.  Board,        3  State  v.  Lafayette  Co.  Court,  41 
49  Barb.  259.  Mo.  221. 

2  State  v.  Board  of  Education,  24        <Gulick  v.  New,  14  Ind.  93. 
Wis.  683 ;  Corn.  v.  Mitchell,  82  Pa.        sCandee,  Ex  parte,  48  Ala.  386. 
St.     343 ;    People    v.    Contracting        6  Prickett,  In  re,  20  N.  J.  L.  134, 
Board,  27  N.  Y.  378.  '  Swan  v.  Gray,  44  Miss.  393. 


14:8  TO   PUBLIC    OFFICERS    AND    CORPORATIONS.  [§  119. 

bonds  of  county  officers,1  the  clerk  of  the  circuit  court  in 
approving  a  bond  for  security  for  costs  in  a  suit  to  contest 
an  election  for  a  judge  of  probate,2  and  the  clerk  of  the 
court  in  approving  a  bond  for  an  attachment,3  all  act  judi- 
cially. A  duly  elected  township  trustee  may  by  this  writ 
compel  the  acceptance  and  approval  of  his  official  bond.4 

§119.  Mandamus  about  issuing  licenses. —  When  offi- 
cers have  no  discretion  about  issuing  licenses,  a  mandamus 
will  issue  to  compel  them  to  do  so,  if  the  applicant  has  com- 
plied on  his  part  with  all  the  requirements  of  the  law. 
When  there  is  no  discretion  allowed,  a  mandamus  lies  to 
compel  the  issuance  of  a  dram-shop  license ; 5  but  very  fre- 
quently it  has  been  denied,  because  the  licensing  officer  was 
allowed  a  discretion.6  The  officer  was  considered  to  have 
a  discretion:  when  the  bondsmen  on  the  bond  of  a  dram- 
shop keeper  were  required  to  live  in  the  village  and  to 
justify  in  an  amount  equal  to  the  face  of  the  bond,  and  the 
officer  was  required  to  determine  the  sufficiency  of  the 
bond ; 7  and  when  the  applicant  for  a  license  was  required 
to  be  recommended  by  five  respectable  freeholders  of  his 
immediate  neighborhood.8  An  officer  cannot  be  compelled 
to  issue  a  license  to  sell  whisky,  when  a  majority  of  the 
police  board  have  not  assented  thereto,  which  is  required 
by  the  law  prior  to  such  issuance.9  No  one  has  a  vested 
right  to  sell  liquor,  and,  prior  to  the  issuance  of  a  license, 
the  tax  thereon  may  by  law  be  increased  or  the  privilege 
of  selling  liquor  at  all  may  be  abrogated ;  in  the  one  case 
the  writ  will  not  issue  to  compel  the  issuance  of  a  license 

i  State  v.  Barnes,  25  Fla,  298.  1  Hill,  655 ;  Maxton  Co.  (Com'rs)  v. 

2  McDuffie  v.  Cook,  65  Ala.  430.  Robeson  Co.  (Com'rs),  107  N.  C.  335 ; 

3  Mobile,  etc.  Co.  v.  Cleveland,  76  Jones  v.  Moore  Co.  (Com'rs),   106 
Ala.  321.  N.  C.  436 ;    Dunbar  v.  Frazer,  78 

4  Copeland  v.  State,  126  Ind.  51.  Ala.    538;    Yeager,    Ex    parte,    11 

5  Bean  v.   Barton  Co.  Court,  33  Grat.  655 ;    Ramaguano   v.  Crook, 
Mo.  Ap.  635 ;   State  v.  Ruark,  34  85  Ala.  226. 

Mo.  Ap.  325.  7  Parker  v.  Portland,  54  Mich.  308. 

e  Louisville  (City)  v.  Kean,  18  B.  s  Devin  v.  Belt,  70  Md.  352. 

Mon.  9;  Schlaudecker  v.  Marshall,  9Purdy  v.  Sinton,  56  Cal.  133. 
72  Pa.  St  200 ;  Pearsons,  Ex  parte, 


§  120.]  TO   PUBLIC    OFFICERS   AND    CORPORATIONS.  Ill) 

to  sell  liquor  dispensing  with  the  payment  of  such  increased 
tax,1  and  in  the  other  will  not  issue  at  all.2  When  the  law  re- 
quired physicians  to  have  a  diploma  from  legally  chartered 
medical  institutions  in  good  standing  before  they  were  al- 
lowed to  practice  their  profession,  a  mandamus  to  the  state 
board  of  health,  to  issue  a  license  to  a  physician  allowing 
him  to  practice  medicine,  was  refused,  because  such  board 
had  a  discretion  in  determining  whether  medical  institu- 
tions were  in  good  standing.3  When  a  discretion  is  allowed 
as  to  licensing  a  ferry,  a  mandamus  will  not  lie  to  compel 
the  issuance  of  such  a  license.4  When  the  board  which  has 
a  discretion  in  the  matter  has  considered  the  petition  for  a 
license  and  has  refused  it,  its  action  cannot  be  reviewed  or 
reversed  by  this  writ.5 

§  120.  Mandamus  to  police  officials. —  If  a  board  of  police 
commissioners  wrongfully  discharge  a  police  officer,6  or  dis- 
miss him  without  cause  or  without  a  trial,7  or  for  a  cause 
not  allowed  by  law,8  he  may  obtain  his  restoration  to  his 
position  by  the  writ  of  mandamus.  A  captain  of  police 
may  by  this  writ  compel  the  police  commissioners  to  pay 
him  the  salary  allowed  to  him  by  law.9  A  surgeon  em- 
ployed by  a  police  board  may  by  this  writ  compel  them  to 
draw  their  requisition  in  his  favor  for  his  salary  as  fixed  by 
law,  though  he  has  contracted  with  them  for  a  smaller  com- 
pensation.10 A  mandamus  is  permissible  to  compel  the 
police  commissioners  to  vacate  their  order  to  the  police  not 
to  interfere  with  the  selling  of  wine  and  liquors  on  Sunday, 
and  to  compel  them  to  have  the  laws  obeyed,  but  not  to 

1  Sights  v.  Yamalls,  12  Grat  292.  &  Collarn's  Petition,  134  Pa.  St.  551. 

2  State  v.  Bonnell,  119  Ind.  494  6pe0ple  v.  Police  Board,  35  Barb. 

3  State  v.  Gregory,  83  Mo.  123.  527,  535,  544,  644,  651;   People  v. 

4  State    v.   Cramer,  96    Mo.   75;  French,  108  N.  Y.  583. 

Thomas  v.  Armstrong,  7  Cal.  286.  "Riley  v.  Kansas  City,  31  Mo.  Ap. 

In  the  last  case  it  was  considered  439. 

that  the  writ  would  issue,  if  the  re-  8  Hawkins  v.  Kercheval,  78  Tenn. 

fusal  to  issue  the  license  was  due  535. 

to  a  mistake  of  law.     This  is  con-  *•  People  v.  Smith,  77  N.  Y.  347. 

trary   to    most   of    the    decisions.  10  People  v.  Board  of  Police,  75 

Ante,  §  39.  N.  Y.  38. 


150  TO   PUBLIC    OFFICEES   AND   CORPORATIONS.       [§§  121,  122. 

direct  them  generally  as  to  the  performance  of  their  duties, 
many  of  which  admit  of  discretion  as  to  the  manner  of 
their  performance.1  A  mandamus  will  not  lie  to  any  offi- 
cer directing  a  general  course  of  conduct.  It  may  be 
granted  relative  to  a  specific  act.2  It  may  issue  relative 
to  one  act  or  one  order.  It  may  issue  generally  to  police 
authorities,  when  they  refuse  to  perform  their  public  duty, 
to  perform  such  duty,  but  cannot  specifically  direct  them 
how  to  perform  it.3 

§  121.  Mandamus  to  clerk  of  the  county  board. —  This 
writ  has  been  issued  to  the  clerk  of  the  county  board :  to 
sign  an  order  on  the  county  treasurer  for  an  account  al- 
lowed and  ordered  to  be  paid  by  the  county  board  of  su- 
pervisors ; 4  to  transfer  records  and  suits  to  another  county 
as  provided  by  law ; 5  to  issue  a  proper  tax  deed,  the  one 
already  issued  being  fatally  defective;6  to  put  the  county 
seal  on  a  county  warrant,  which  his  predecessor  had  omitted 
to  do ; 7  to  report  the  amount  of  fees  he  had  received  as 
required  by  law ; 8  and  to  record  the  acts  of  the  county 
commissioners  in  surveying  a  road,  though  he  claimed  the 
parties  were  not  the  proper  commissioners,  since  he,  being 
a  mere  ministerial  officer,  is  not  allowed  to  adjudge  the  acts 
of  de  facto  officers  to  be  null.9  This  writ  will  not  lie  to  the 
county  clerk  to  correct  the  records  of  the  board  of  super- 
visors of  the  county,  since  such  records  are  under  the  con- 
trol of  that  board.10 

§  122.  Mandamus  to  the  clerk  of  a  court. —  This  writ 
has  often  been  used  to  compel  the  clerk  of  a  court  to  fulfill 
various  ministerial  duties  incumbent  upon  him.11  Where, 
however,  such  duties  involve  judgment  or  discretion  the 

1  State  v.  Francis,  95  Mo.  44.  ?  Prescott  v.  Gonser,  34  Iowa,  175. 

2 State  v.  Murphy,  3  Ohio  C.  C.  estate   v.   Whittemore,   12  Neb. 

332.  252. 

3  State     v.     Columbus     (Police  9  People  v.  Collins,  7  Johns.  549. 

Board),  19  Weekly  L.  Bui.  347.  ">  Wigginton  v.  Maxkley,  52  CaL 

«  State  v.  Richter,  37  Wis.  275.  411. 

8  State  v.  McKinney,  5  Nev.  194  "  See  §85. 

6Bryson  v.  Spaulding,  20  Kans. 
427 ;  State  v.  Winn,  19  Wis.  304. 


§  123.]  TO    PUBLIC    OFFICERS   AND    COBPOKATIONS.  151 

writ  will  be  refused.  He  was  not  required  to  issue  an  exe- 
cution, because  the  judgment  was  ambiguous.1  Under  a 
decree  calling  for  periodic  payments  of  alimony,  a  man- 
damus was  refused  to  compel  him  to  issue  an  execution  for 
a  certain  large  sum  of  money,  because  he  could  not  assume 
that  so  much  money  was  in  arrears.2  Though  a  mandamus 
is  the  proper  remedy  to  compel  all  officers  to  perform  purely 
ministerial  duties,  it  has  been  refused  in  the  case  of  the 
clerk  of  a  court,  because  there  was  another  remedy  pro- 
vided by  law ; 3  because  a  suit  on  his  bond  was  deemed  to 
be  a  sufficient  remedy,4  or  because  the  court  in  its  discre- 
tion  refused  to  interfere,  allowing  the  relator  to  obtain  his 
redress  by  an  application  to  the  court  itself,  whereof  the 
respondent  was  the  clerk.5 

§  123.  Mandamus  to  a  sheriff'.—  The  writ  of  mandamus 
has  been  issued  to  compel  a  sheriff:  to  execute  a  writ  of 
execution ; 6  to  carry  out  the  decree  of  the  court  and  put  a 
party  in  possession  of  property ; 7  to  erase  changes  made  in 
his  return  and  make  it  conform  to  its  original  terms  when 
such  original  return  was  correct ; 8  to  surrender  property 
which  he  is  no  longer  entitled  to  hold,  as  when  on  appeal 
the  bond  is  not  filed  in  time,9  or  a  wife  claims  that  her  hus- 
band is  insolvent,  and  has  given  bond  and  security  for  the 
forthcoming  of  the  household  property  levied  on  for  the 
husband's  debt ; 10  to  appoint  appraisers  to  appraise  the  prop- 
erty of  the  debtor,11  and  have  the  proper  amount  set  apart 
as  exempt  from  execution ; 12  to  sell  an  estate  as  an  entirety 
at  the  request  of  the  mortgagee; 13  and  to  make  a  deed  to 
the  purchaser  of  property  sold  by  him  at  execution  sale.14 

1  Hall  v.  Stewart,  23  Kans.  396.  8  Ward  v.  Curtiss,  18  Conn.  290. 

2  Compton  v.  Airial,  9  La.  An.  496.        9  State  v.  Cunningham,  9  Neb.  146. 
3Pickell  v.  Owen,  66  Iowa,  485.  10  Mitchell  v.  Hay,  37  Ga.  581. 

*  Goodwin  v.  Glazer,  10  CaL  333.  "  People  v.  McClay,  2  Neb.  7. 

s  See  §  85.  12  Pudney  v.  Burkhart,  62  Ind.  179. 

6  North  P.  etc  E.  R.  v.  Gardner,  13  Morris  v.  Womble,  30  La.  An. 

79  Ca1.  213.  1312. 

1  Quan  Wo  Chung  v.  Laumeister,  14  Winters  v.  Burford,  6  Cold.  328 ; 

83  CaL  384.  People  v.  Fleming,  4  Denio,  137 ; 


152  TO   PUBLIC   OFFICERS    AND    CORPORATIONS.  [§  124. 

But  the  writ  will  not  lie  to  compel  the  sheriff  to  do  an  act, 
unless  it  is  clearly  his  duty  to  do  so.   He  will  not  be  required 
to  give  a  deed  to  the  purchaser  at  an  execution  sale,  who  re- 
fuses to  pay  the  amount  of  his  bid,  claiming  to  be  the  oldest 
judgment  and  execution  creditor,  especially  when  there  is 
an  unsettled  contest  as  to  the  lien  of  his  judgment.1  Where 
the  purchaser  at  a  sheriff's  sale  waited  for  nearly  two  years, 
and  until  the  sheriff  had  resold  nearly  all  the  land  and  had 
failed  to  pay  the  amount  of  his  bid,  he  was  denied  a  man- 
damus to  compel  the  sheriff  to  make  him  a  deed.2  A  sheriff 
cannot  be  required  by  mandamus  to  execute  a  deed  to  a 
purchaser  at  an  execution  sale  which  contains  recitals  con- 
tradicted by  his  return,  which  he  claims  to  be  true.3    A 
marshal  cannot  be  compelled  to  execute  a  judgment  on 
particular  property,  the  title  to  which  is  in  dispute,*  nor  a 
sheriff  to  levy  on  property  standing  in  the  wife's  name  in  a 
suit  against  the  husband,  since  the  relator  has  not  a  clear 
leo-al  right.5    Where  a  sheriff  fails  to  give  his  official  bond 
within  the  time  limited  by  law,  his  office  is  by  law  declared 
to  be  vacant,  and  a  writ  of  mandamus  will  not  lie  to  the 
county  judge  to  accept  a  bond  tendered  thereafter.6  A  sher- 
iff will  not  be  compelled  to  pay  to  the  owner  a  surplus  re- 
ceived upon  the  sale  of  his  land  for  taxes,  since  there  is  an 
adequate  remedy  by  a  suit  at  law  against  the  sheriff.7 

§  124.  Mandamus  to  a  register  of  deeds.— The  writ  of 
mandamus  has  been  issued  to  a  register  of  deeds  to  compel 
him :  to  record  a  deed  presented  to  him  for  that  purpose ; s 
to  file  and  enter  the  satisfaction  of  a  mortgage ; 9  to  allow 
the  officers  authorized  by  law  or  their  agents  the  use  of  a 
part  of  his  office  and  access  to  his  records,  in  order  to  enable 
them  to  transcribe  such  of  those  records  as  relate  to  lands 

Van  Rensselaer  v.  Sheriff,  1  Cow.  *  State  v.  Craft,  17  Fla,  722. 

50L  6  Lowe  v.  Phelps,  14  Bush,  642. 

i  Williams  v.  Smith,  6  Cal.  91.  7  State  v.  Turner,  32  S.  C.  348. 

2  People  v.  Hays,  5  Cal.  66.  8  Strong's      Case,     Kirby,     345; 

sHewell  v.  Lane,  53  Cal.  213.  Goodell,  Ex  parte,  14  John.  325. 

*  Life,  etc  Ins.  Co.  v.  Adams,  9  9  People  v.  Miner,  37  Barb.  466. 
Pet  571. 


§§  125,  126.]       TO    PUBLIC    OFFICEES    AND    COKPOKATIONS.  153 

in  a  new  county,  which  once  constituted  a  part  of  the 
county  to  which  such  records  belong.1  Since  the  writ  only 
issues  relative  to  the  discharge  of  official  duties,  it  will  not 
issue  to  compel  a  register  of  deeds  to  record  a  deed  which 
he  did  not  receive  officially  but  as  an  escrow,  and  more  es- 
pecially when  one  of  the  parties  to  such  delivery  has  for- 
bidden him  to  deliver  up  or  to  record  said  deed.2 

§  125.  Mandamus  to  keep  public  offices  in  the  proper 
places. —  The  writ  of  mandamus  is  the  proper  remedy  to 
make  judges  hold  their  courts,  and  county  officers  keep 
their  offices,  at  the  county  seat,3  and  to  compel  other  offi- 
cers to  keep  their  offices  within  the  districts  or  precincts 
for  which  they  are  elected.4  Such  questions  often  present 
themselves  to  a  court  by  reason  of  a  dispute  as  to  the  result 
of  an  election  to  decide  the  location  of  the  county  seat.  A 
mandamus  is  considered  to  be  the  proper  mode  whereby 
to  decide  the  result  of  the  election,5  unless  another  remedy 
has  been  provided  by  statute.6  The  result  of  the  election 
as  declared  by  the  county  commissioners  is  considered  to 
be  prima  facie  correct,7  but  it  may  be  rebutted  8  if  fraud  is 
shown.9 

§  126.  Mandamus  to  auditing  officers.—  This  writ  runs 
to  public  auditing  officers  to  compel  them  to  discharge  their 
ministerial  duties.  Where  a  claim  has  been  allowed  by  the 
proper  authority,  the  duty  of  an  auditor  to  audit  it  and 
draw  his  warrant  on  the  proper  disbursing  officer  is  merely 
a  ministerial  duty,  and  he  will  be  compelled  by  the  writ  of 
mandamus  to  perform  this  duty,  upon  his  refusal  to  do  so.10 

i  Silver  v.  People,  45  111.  224;  4  State  v.  Shropshire,  4  Neb.  411. 
Hawes  v.  White,  66  Me.  305 ;  State        5  State   v.   Avery,   14  Wis.   122 ; 

v.  Meadows,  1  Kans.  90.  State  v.  Saxton,  11  Wis.  27. 

2  People  v.  Curtis,  41  Mich.  723.  6  State  v.  Stevens,  23  Kans.  456. 

3  Calaveras  (County)  v.  Brockway,        7  State  v.  Thatch.  5  Neb.  94. 
30  Cai   325 ;  Maxey  v.   Mack,  30        8  State  v.  Avery,  14  Wis.  122. 
Ark.  472 ;  State  v.  Walker,  5  Rich.        9  State  v.  Marston,  6  Kane.  524. 
(N.  S.)  263;  State  v.  Thatch,  5  Neb.       10  People  v.  Green,  56  N.  Y.  466 
94;  State  v.  Lean,  9  Wis.  279;  State  Babcock  v.  Goodrich,  47  Cal.  488 
v.   Avery.   14  Wis.   122 ;    State  v.  People  v.  Schuyler,  69  N.  Y.  242 
Marston,  6  Kans.  524  State  v.  Mount,  21    La.  An.  352 


15i  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  [§  126. 

If,  however,  such  proper  authority  allowed  a  claim  when  it 
had  no  jurisdiction  in  the  matter,1  or  allowed  an  illegal 
claim,2  or  an  appeal  has  been  taken  from  the  decision  and 
the  allowance  has  been  legally  annulled,3  the  auditor  may 
properly  refuse  to  issue  his  warrant.  When  such  auditing 
officer  has  a  discretion  in  auditing  a  claim  and  in  determin- 
ing the  amount  justly  due,  a  mandamus  will  not  lie  to  com- 
pel him  to  audit  such  claim  for  a  certain  amount,4  since 
such  action  is  judicial  in  its  character.5  When,  however,  j 
in  his  return  to  the  alternative  writ  the  respondent  tendered 
an  issue  as  to  the  amount  due  to  the  relator  and  asked  that 
such  issue  be  submitted  to  a  jury,  the  court  considered  that 
he  was  bound  by  the  verdict  of  the  jury  and  ordered  him 
to  issue  a  warrant  for  the  sum  so  found  to  be  owing; 
whereas,  if  he  had  not  offered  to  submit  the  matter  to  the 
jury,  the  order  would  have  been  to  audit  the  account  and 
to  issue  his  warrant  for  the  sum  he  found  to  be  owing.6 
Since  such  allowance  is  a  judicial  act,  the  auditing  officer 
or  board  has  no  power  afterwards  to  review,  reverse,  vacate 
or  set  aside  such  allowance;7  but  a  mandamus  has  been 
granted  at  the  instance  of  third  parties  to  compel  an  audit- 
ing board,  which  had  allowed  to  a  county  treasurer  more 
fees  than  the  law  permitted,  to  reconsider,  revoke  and  annul 
the  allowance  as  to  such  excess.8  When  an  auditing  officer 
has  allowed  a  claim,  he  may  be  compelled  by  mandamus 
to  draw  his  warrant  on  the  proper  officer  for  its  payment.9 

Falk  v.  Strother,  84  Cal.  544 ;  Cuth-  242 ;  Auditorial  Board  v.  Aries,  15 
bert  v.  Lewis,  6  Ala.  262;  Jack  v.  Tex.  72;  Auditorial  Board  v.  Hen- 
Moore,  66   Ala.  184 ;    Kemerer   v.  drick,  20  Tex.  60. 
State,  7  Neb.  130.    See  §§  104, 105.  » People  v.  Livingston  Co.  (Sup'rs), 

i  People  v.  Green,  56  N.  Y.  466.  26  Barb.  118 ;  Tilden  v.  Sacramento 

2  State  v.  Yeatman,  22  Ohio  St  Co.  (Sup'rs),  41  CaL  68. 

546>  6  state  v.  Warner,  55  Wis.  271. 

a  State  v.  Buckles,  39  Ind.  272.  7  State  v.  Buffalo  Co.,  6  Neb.  454 ; 

4  People  v.  New  York  (Sup'rs),  1  Thomas  v.  Smith,  1  Mont.  21. 

Hill,  362;  People  v.  San  Francisco  "People  v.  Westchester   Co.,  73 

(Sup'rs),  11  Cal.  42 ;  Tuolumne  Co.  v.  N.  Y.  173. 

Stanislaus  Co.,  6  Cal.  440;  Bright  'State  v.  Mount,  21  La,  An.  352. 
v.  Chenango  Co.  (Sup'rs),  18  John. 


§  126.]  TO    TUBLIC    OFFICERS    AND   CORPORATIONS.  155 

When  such  auditing  officer  or  board,  possessing  such  dis- 
cretionary powers,  refuses  to  consider  a  proper  claim  for 
any  reason,  a  mandamus  will  issue  to  compel  such  consid- 
eration and  a  decision  thereon.1  In  auditing  an  account 
the  auditing  officers  must  audit  each  separate  and  distinct 
item  which  is  a  legal  charge.  If  they  merely  reduce  the 
gross  sum,  without  allowing  or  disallowing  any  particular 
item,  a  mandamus  will  lie  to  compel  a  proper  audit.2  The 
law  must  impose  the  duty  of  auditing  such  claims  on  an 
officer  before  he  can  be  required  to  do  so.  A  county  audi- 
tor was  not  required  to  draw  his  warrant  for  a  claim  allowed 
and  audited  by  the  county  of  supervisors,  because  the  law 
only  required  him  to  draw  his  warrant  for  claims  audited 
by  himself.3  A  receiver  of  public  moneys  asked  for  a  man- 
damus to  compel  the  examination  and  auditing  of  his  ac- 
counts. It  was  refused,  because  the  auditors  were  appointed 
by  law  to  examine  the  accounts  of  public  moneys,  which 
the  crown  miffht  submit  to  them.4  When  a  claim  is  shown 
not  to  be  a  legal  charge,  a  mandamus  will  not  lie  to  audit  it 
and  issue  a  warrant  for  its  payment.  The  writ  was  refused 
to  compel  town  auditors  to  audit  as  a  claim  against  the 
town  a  judgment  obtained  against  highway  officers  for  torts 
committed  by  them  in  the  discharge  of  their  duties.5  When 
another  officer  is  charged  with  the  ascertainment  and  liqui- 
dation of  an  account,  an  auditor  will  not  be  required  to 
audit  it  till  it  has  been  allowed  by  such  officer.6  Where  a 
legislature  had  directed  a  city  to  pay  a  debt  contracted  in 

i  State  v.  Hamilton  Co.  (Com'rs),  2people  v.  Elinira  (Town  Aud.), 

26  Ohio   St.  364;   People  v.  New  82  N.  Y.  80;   People  v.  Delaware 

York  (Sup'rs),  32  N.  Y.  473 ;  People  Co.  (Sup'rs),  45  N.  Y.  196. 

v.  Macomb    Co.  (Sup'rs),  3    Mich.  3  Draper  v.  Noteware,  7  Cal.  276. 

475;   Hull  v.  Oneida  Co.  (Sup'rs),  4  Edmunds,  Ex  parte,  L.  T.  R.  25 

19  John.  259 ;  People  v.  Columbia  N.  S.  705. 

Co.  (Sup'rs),  67  N.  Y.  330 ;  Smith  v.  5pe0ple  v.  Town  Auditors,  74 
Strobach,  50  Ala.  462 ;  Auditorial  N.  Y.  310 ;  People  v.  Town  Audi- 
Board  v.  Aries,  15  Tex.  72 ;  Audi-  tors,  75  N.  Y.  316. 
torial  Board  v.  Hendrick,  20  Tex.  6putnam  Co.  (Com'rs)  v.  Allen 
60 ;  State  v.  Wilson,  17  Wis.  687 ;  Co.  (Aud.),  1  Ohio  St.  322 ;  State  v. 
People  v.  Bell,  4  CaL  177.  Bonebrake,  4  Kans.  247. 


156  TO    PUBLIC    OFFICERS   AND    CORPORATIONS.  [§  126. 

violation  of  the  restrictions  placed  on  it  and  the  city  wished 
to  pay  it,  its  comptroller  was  not  allowed  to  set  at  naught 
its  will,  but  was  compelled  to  draw  his  warrant  therefor 
on  the  city  chamberlain.1  The  weight  of  authority  is,  that 
an  auditor  will  not  be  required  to  draw  his  warrant,  unless 
there  are  funds  in  the  hands  of  the  officer  on  whom  it  is 
drawn  wherewith  to  pay  it.2  The  reason  for  such  ruling 
must  depend  largely  upon  the  duties  of  the  auditor.  If  the 
records  kept  in  his  office  keep  him  fully  informed  as  to  the 
money  in  the  hands  of  the  disbursing  officer,  it  would  seem 
unnecessary  to  compel  him  to  issue  his  warrant ;  and  it  would 
be  the  same  where  such  claim  could  not  be  paid  for  lack  of 
an  appropriation.3  Otherwise  it  seems  appropriate  to  allow 
the  claimant  the  proper  voucher,  and  require  the  officer  to 
do  his  plain  duty,  so  that  the  money  may  be  paid  as  soon 
as  it  is  received.  The  writ  has  been  issued  under  such  cir- 
cumstances, the  courts  stating  that  the  auditing  officer  had 
nothing  to  do  with  the  question  of  payment  and  had  no 
right  to  interpose  such  an  objection  against  the  discharge 
of  his  own  duty.4  "Where  sufficient  money  should  be  on 
hand  to  pay  off  a  claim,  but  it  has  been  applied  wrongfully, 
it  has  been  considered  in  law  still  to  be  on  hand,  and  a  man- 
damus has  been  granted  to  compel  the  issuance  of  a  war- 
rant.5 The  writ  has  also  been  issued  where  the  money  has 
been  wrongfully  credited  to  other  accounts,  and  the  auditor 
has  been  required  to  correct  his  books  accordingly.6  An 
auditor  has  been  compelled  to  issue  a  warrant,  though  in 
his  answer  he  alleged  that  he  had  issued  a  warrant  for  the 
relator  which  was  levied  on  by  a  constable,  who  sold  it,  be- 
cause under  the  law  such  warrants  were  not  liable  to  seiz- 

i  People  v.  Haws,  36  Barb.  59.  3  People  v.  Burrows,  27  Barb.  89 ; 

2  Com.  v.  Lancaster  Co.  (Com'rs),  People  v.  Tremain,  29  Barb.  96. 

6  Binn.   5  ;  People   v.   New  York  4  State  v.  Clinton,  28  La.  An.  47 : 

(Compt.),  77  N.  Y.  45 ;  State  v.  Star-  State  v.  Hoffman,  85  Ohio  St.  435. 

ling,  13  S.  C.  262 ;  Board  of  Improv.  See  §  105. 

v.  McManus,  54  Ark.  446 ;  Lancas-  5  People  v.  New  York  (Compt). 

ter  Co.  (Com'rs)  v.  State,  13  Neb.  77  N.  Y.  45. 

523.  6  People  v.  Bell,  4  Cal.  177. 


§  127.]  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  15  T 

ure,  and  the  relator  had  never  received  it.4  The  perform- 
ance of  other  ministerial  duties  imposed  by  law  on  auditors 
have  been  enforced  by  this  writ.  They  have  been  required 
to  furnish  for  taxation  a  list  of  the  stockholders  for  a  rail- 
road company  upon  the  failure  of  the  company  to  do  so,2 
to  allow  a  collector  of  taxes  credit  for  certain  payments 
made  by  him,3  and  to  sign  leases  made  by  a  city.4 

§  127.  Mandamus  to  assessors  of  taxes.— The  writ  of 
mandamus  lies  to  compel  assessors  of  taxes  to  do  their  duty.5 
It  lies  to  make  them  assess  all  property  which  is  subject  to 
taxation ; fi  to  extend  on  the  collector's  books  the  taxes  ac- 
cording to  the  increased  valuation  of  property  in  the  county 
made  by  the  state  board  of  equalization ; 7  enter  on  the  as- 
sessment book  the  delinquent  taxes  of  the  preceding  year;8 
strike  an  illegal  assessment  from  the  assessment  roll ; 9  re- 
duce an  assessment  ;10  hear  claims  of  parties  relative  to  taxes 
paid  as  assessed  against  exempt  property,  and  if  so  paid 
determine  the  amount,  audit,  levy,  collect  and  repay  the 
same ; "  transfer  from  A.'s  name  on  the  assessment  book  cer- 
tain property  to  B.'s  name,  to  whom  A.  has  conveyed  it ; 12 
extend  a  school  tax  upon  the  tax  books  according  to  the 
estimate  furnished  by  the  district  school  directors.13  or  by 
the  board  of  education ; 14  assess  as  a  tax  the  amount  required 
for  the  poor  of  a  city  for  any  year  as  determined  by  the 

1  People  v.  Wayne  Co.  (Auditors),  unequal  taxation.    Butler  v.  Cob- 
5  Mich.  223.  let,  11  Mod.  254;  Sullivan  v.  Peck- 

2  State  v.  Hamilton,  5  Ind.  310.  ham,  stqjra. 

3  People  v.  Miner,  46  111.  384.  '  People  v.  Salomon,  54  III  39. 

4  People  v.  Green,  64  N.  Y.  499.  8  People  v.  Ashbury,  46  CaL  523. 
5 State  v.  Whitworth,  8  Lea,  594.  9  People  v.  Barton  (Assessors),  44 
6  Hyatt  v.  A  lien,  54  Cal.  353 ;  Max-    Barb.  148. 

well  v.   State,  40  Md.   273 ;  Q.  v.  w  People  v.  Olmsted,  45  Barb.  644. 

Barnwell    (Corn'rs  Land    Tax),  11  n  People  v.  Otsego  Co.  (Sup'rs),  53 

Mod.  206 ;  State  v.  Shearer,  30  Cal.  Barb.  564. 

645 ;  Sullivan  v.  Peckham,  16  R.  I.  *2  Cincinnati  College  v.  Yeatman, 

525 ;   State  v.   Whitworth,  8   Lea,  30  Ohio  St  276. 

594;  Ford  v.  Cartersville  (Mayor),  H  State  v.  Byers,  67  Md.  706. 

84  Ga,  213 ;  State  v.  Buchanan,  24  14  People  v.  Bennett,  54  Barb.  480, 

W.  Va  362.    It  is  not  a  remedy  for 


158  TO   PUBLIC   OFFICERS    AND    CORPORATIONS.  [§  128. 

common  council  of  the  city ; l  issue  a  tax  duplicate  for  the 
tax  on  real  estate  in  the  county  without  adding  to  the  valu- 
ation a  per  cent,  added  by  a  state  board  of  equalization  which 
was  not  legally  constituted ; 2  reduce  the  assessed  value  of 
realty  in  a  town  as  determined  by  the  board  of  supervisors,3 
and  include  in  the  estimate  of  taxes  a  balance  due  on  a  claim 
previously  allowed  against  the  county.4  When  the  assess- 
ment rolls  have  passed  from  the  control  of  the  assessors, 
no  mandamus  will  issue  to  them  relative  to  such  matters.5 
Assessors  of  taxes  must,  prior  to  any  judicial  construction, 
in  the  discharge  of  their  duties  obey  the  law  as  construed 
by  the  governor  of  the  state.  If  such  construction  is  plainly 
wrong,  a  mandamus  will  not  issue  to  an  assessor  to  obey  it, 
not  on  account  of  the  assessor,  but  in  order  not  to  cause 
expensive  litigation,  which  might  grow  out  of  an  act  clearly 
illegal ;  if  such  construction  of  the  law  by  the  governor  is 
not  plainly  wrong,  the  court  will  not  pass  on  it  until  a 
proper  case  is  brought  before  the  court  by  parties  inter- 
ested therein.6  An  assessor  will  not  be  required  to  place 
on  his  tax  duplicate  certain  taxes  levied  by  a  city,  when 
such  taxes  exceed  the  rate  of  taxation  allowed  by  law.7 
When  the  act  calls  for  discretion  and  judgment,  as  the  cor- 
rection of  an  error  in  a  tax  duplicate,  this  writ  will  be  re- 
fused.8 

§  128.  Mandamus  relative  to  subscriptions  by  munici- 
pal corporations  to  railroads,  etc. —  From  time  to  time 
acts  of  the  legislature  have  been  passed  which  authorized 
municipal  corporations  to  subscribe  to  the  stock  of  railroads 
and  similar  enterprises,  and  to  issue  their  bonds  in  payment 
thereof.  Questions  have  arisen  under  such  acts,  wherein 
the  assistance  of  the  courts  has  been  sought  to  enforce  the 

i  Albany    (Com.     Council),     Ex  328 ;  People  v.  Westchester  (Sup'rs), 

parte,  3  Cow.  358.  15  Barb.  607. 

2  Hamilton  v.  State,  3  Ind.  452.  6  State  v.  Buchanan,  24  W.  Va. 

3  Kidley  v.  Doughty,  77  Iowa,  226.  362. 

4  State  v.  Cathers,  25  Neb.  250.  7  State  v.  Humphreys,   25   Ohio 

5  State   v.  Archibald,  43    Minn.  St  520. 

8  Lynch,  Ex  parte,  16  S.  C.  32. 


§  128.]  TO   PUBLIC    OFFICERS    AND   CORPORATIONS.  159 

duties  imposed  thereby  on  municipal  coporations.  "When 
a  municipal  corporation  is  authorized  to  subscribe  to  the 
stock  of  a  certain  corporation  after  a  favorable  public  vote 
on  the  question,  such  vote  creates  no  contract  with  that 
corporation,  and  the  municipality  is  not  bound  to  issue 
bonds  on  tender  of  stock,1  unless  the  law  makes  it  the  duty 
of  the  proper  municipal  officers  to  make  the  subscription 
and  issue  the  bonds,  when  such  vote  is  in  favor  of  making 
the  subscription.2  When  the  subscription  is  once  made,  a 
mandamus  will  lie  to  compel  the  municipality  to  issue  its 
bonds  to  pay  for  such  subscription,3  or  to  take  steps  to 
raise  the  money  due  therefor  in  accordance  with  the  stat- 
ute,4 since  such  duty  then  becomes  imperative.5  The  mu- 
nicipality may  impose  conditions  to  its  subscription  though 
the  law  authorizing  the  subscription  is  silent  on  the  subject, 
and  the  relator  must  show  compliance  therewith  before 
he  can  obtain  a  mandamus  to  compel  the  subscription  or 
issue  of  the  bonds.6  A  mandamus  to  compel  the  issuance 
of  bonds  in  accordance  with  a  subscription  was  refused, 
because  the  vote  authorizing  the  subscription  was  taken 
before  the  proper  papers  were  filed,  which  was  contrary  to 
the  express  provisions  of  the  law.7  A  proposition  of  a  rail- 
road, when  accepted  by  town  officers,  becomes  a  contract 
under  the  law  allowing  a  subscription  to  such  railroad, 
with  a  condition  precedent  that  the  voters  vote  for  such 
proposition.  If  they  affirm  it,  it  becomes  binding  on  both 
parties,  and,  upon  a  tender  of  the  stock,  a  mandamus  will 

i  Union   P.  R  E.  v.  Davis  Co.  4  Clarke  Co.  (Just.)  v.  Paris,  etc. 

(Com'rs),  6  Kans.   256 ;   People  v.  Co.,  11  B.  Mon.  143. 

Fort  Edward  (Trustees),  70  N.  Y.  28 ;  S  Cincinnati,  etc.  R.  R  v.  Clinton 

State  v.  Roscoe  (Town),  25  Minn.  Co.  (Com'rs),  1  Ohio  St  77 ;  Osage 

445,  Valley,  etc.   R  R  v.  Morgan   Co. 

2  People  v.  Dutcher,  56  111.  144;  (Co.  Court),  53  Mo.  156. 

People  v.  Waynesville  (Town),  88  6  People  v.  Dutcher,  56  HI.  144; 

111.  469;    People  v.  Glann,  70   111.  People  v.  Waynesville  (Town),  88 

232;  People  v.  Holden,  91  111.446.  111.  469;    People  v.  Glann,  70  EL 

3  Atchison,  etc.  R  R    v.  Jeffer-  232 ;  People  v.  Holdeu,  91  111.  446. 
son  Co.  (Com'rs),  12  Kans.  127.  '  Essex  Co.  R  R  v.  Lunenburgh 

(Town),  49  Vt  143. 


160  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  [§  129. 

lie  to  compel  the  issue  of  the  bonds.1  An  ordinance  by  a 
city,  pursuant  to  express  legislative  authority,  expressly 
obligated  the  city  to  issue  its  bonds  to  a  railroad  as  bonus, 
if  the  railroad  did  certain  things.  A  compliance  by  the 
railroad  will  create  a  binding  obligation,  and  the  city  must 
issue  its  bonds,  or  it  may  be  compelled  to  do  so  by  man- 
damus.2 But  when  a  town  is  authorized  to  assist  in  build- 
ing a  railroad,  its  agreement  to  issue  bonds  therefor  must 
be  complete  before  the  construction  of  the  railroad,  since  it 
has  no  authority  to  assist  a  railroad  already  constructed.3 

§  129.  Mandamus  to  leyy  a  tax  to  pay  debts,  when  au- 
thority to  make  a  levy  is  granted  or  is  implied.— When 
a  municipal  corporation  has  legally  incurred  a  debt,  which 
a  court  will  never  compel  it  to  do,4  justice  requires  that  the 
debt  should  be  paid ;  and  when  there  are  officers  whose  duty 
it  is  to  see  that  such  debts  are  paid,  they  will  be  required 
to  exercise  their  powers  for  that  purpose.     Such  powers 
generally  consist  of  an  authority  to  levy  taxes  to  procure 
money  for  such  payment.     When  an  application  is  made 
for  a  manilam  us  to  compel  the  levy  of  a  tax  to  pay  a  debt, 
it  must  first  be  shown  that  the  respondents  have  power 
under  the  law  to  levy  a  tax  to  pay  the  indebtedness  in  ques- 
tion, for  an  officer  cannot  be  required  by  this  writ  to  do 
any  act  not  authorized  by  law.     He  can  only  levy  a  tax  in 
the  manner  and  to  the  amount  prescribed  by  law.5   It  must 
be  shown  in  each  case  that  the  officers  have  power  to  levy 
taxes  to  pay  the  claim  in  controversy  before  they  will  be 
ordered  to  make  the  levy.   If  the  statute  requiring  the  levy 
of  a  tax  is  itself  void,  there  being  no  duty  to  levy  a  tax,  a 
mandamus  to  compel  a  levy   will  be  refused.6    When  a 

i  State  v.  Jennings,  48  Wis.  549.  26  Iowa,  515 ;  Polk  v.  Winett,  37 

2  State  v.  Lake  City,  25  Minn.  404  Iowa,  34 ;  State  v.  Kenning  ton,  10 

3  State    v.  Highland    (Town),  25  Rich.  (N.  S.)  299 ;  United  States  v. 
Minn.  355.  Macon  County,  99  IT.  S.  582 ;  War- 

*  People  v.Hyde  Park,  117111.462.  ren  Co.  (Sup'rs)  v.  Klein,  51  Miss. 

5  Sup'rsv.  United  States,  18  Wall.  807;   Butz   v.  Muscatine  (City),   8 

71 ;   State  v.  Rainey,  74  Mo.  229 ;  Wall.  575. 

Clay  Co.  v.  McAleer ,  115  U.  S.  616 ;  6  State  v.  Tappan,  29  Wis.  664 
Coffin  v.  Davenport  (City  Council), 


§   129.]  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  161 

municipal  corporation  has  authority  to  create  a  debt  or  to 
incur  an  obligation  to  carry  out  any  public  object,  or  to 
spend  a  large  sum  of  money  on  a  variety  of  public  works 
without  any  provision  providing  the  means  therefor,  or  to 
contract  a  debt  by  the  issue  of  negotiable  securities,  such 
authorization  implies  and  carries  with  it  the  power  to  adopt 
the  ordinary  means  employed  by  such  bodies  to  raise  funds 
for  the  execution  thereof,  though  the  law  authorizing  the 
creation  of  the  debt  is  silent  on  that  subject,  unless  such  funds 
are  otherwise  provided,  or  the  law  conveying  the  author- 
ity, or  some  general  law  in  force  at  the  time,  clearly  mani- 
fests a  contrary  intention ;  and  the  ordinary  means  in  such 
cases  is  taxation.1  Since  the  usual  means  of  providing  the 
funds  is  by  taxation,  a  power  to  subscribe  for  railroad  stock 
does  not  carry  a  power  to  issue  bonds,  but  only  a  power  to 
raise  the  money  bv  taxation.2  When  the  law  under  which 
the  debt  was  created  specifically  provides  that  taxes  shall  be 
levied  to  pay  the  same,  a  mandamus  will  issue  to  compel 
the  levy  of  the  necessary  tax.  The  writ  has  been  issued  to 
enforce  the  express  provisions  of  the  law  in  that  respect, 
and  to  compel  the  levy  of  a  tax  to  pay  the  expenses  of  con- 
structing public  buildings;3  to  pay  for  the  construction  of  a 
harbor;4  to  build  a  school-house  as  requested  by  the  elect- 
ors of  the  town ; 5  to  create  a  fund  to  pay  a  certain  indebt- 
edness;- to  raise  the  amount  of  money  for  educational 
purposes  which  the  board  of  education  had  determined  to 
be  necessary ; T  to  compel  a  sheriff,  as  required  by  an  act  of 

1  United  States  v.  New  Orleans.  » Manor    v.    McCall,  5    Ga.  522; 

98  U.  S.  381 ;  United  States  v.  Lin-  Tarverv.  Tallapoosa  (Com'rs  Court), 

coin  Co.  (Just),  5  Dill,  184 ;  Com.  v.  17  Ala.  527 ;  Stevenson  v.  Summit 

Allegheny  (Com'rs),  37  Pa.  St.  277 ;  (Dist.  Town),  35  Iowa,  462. 

State    v.   New  Orleans    (City),   34  4  state  v.  Milwaukee  (City),  25  Wis. 

La.   An.   477;  Com.    v.   Allegheny  122. 

(Com'rs),  43  Pa.  St.  400 ;  Ralls  Co.  5  Cooper  v.  Nelson,  38  Iowa,  440. 

Ct.  v.  United  States,  105  U.  S.  733 ;  b  Wilkinson  v.  Cheatham,  43  Ga. 

Eufala  (City  Council)  v.  Hickman,  258. 

57  Ala,  338.  7  state  v.  Smith,  11  Wis.  65. 

2Kelley  v.  Milan,  127  U.  S.  139; 
Norton  v.  Dyersburg,  127  U.  S.  160. 
11 


102  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  [§  130. 

the  legislature,  to  levy  a  tax  to  pay  a  certain  judgment ; '  to 
pay  a  judgment  obtained  in  a  federal  court  against  a  city; 2 
to  pay  municipal  bonds;3  to  pay  interest  on  municipal 
bonds;4  to  pay  the  damages  assessed  for  property  taken 
for  the  opening  of  a  street5  or  a  highway,6  and  to  pay  the 
bounties  promised  to  soldiers.7  In  some  cases,  where  the 
liability  of  the  municipality  on  its  bonds  was  questioned,  or 
the  validity  of  the  bonds  themselves  in  law  or  in  fact,  or 
the  validity  of  the  claim  for  the  payment  whereof  the  levy 
and  collection  of  a  tax  was  provided,  the  courts,  when  from 
the  showing  made  the  question  of  liability  appeared  doubt- 
ful, have  refused  to  issue  the  writ,  till  a  judgment  had  been 
first  obtained  on  the  asserted  obligation.8  When  it  is  made 
the  duty  of  a  county  board  of  supervisors  to  raise  a  certain 
sum  of  money  as  other  charges  are  levied  and  collected,  it 
is  incumbent  on  them  to  levy  a  tax  for  that  purpose.9 

§  130.  Claims  must  he  legally  established  before  a  man- 
damus will  issue  to  compel  the  levy  of  a  tax  for  their 
payment. —  Since  this  writ  issues  only  to  enforce  plain 
duties,  it  will  not  go  against  a  public  board  or  officer  to 
levy  a  tax  to  pay  a  certain  claim,  unless  it  is  manifest  that 
such  claim  is  a  legal  charge,  and  that  the  amount  thereof 

1  Bassett  v.  Barbin,   11   La.  An.  Fla.  451 ;    Williamsport    (City)    v. 
672.  Com.,  90  Pa.  St.  498;  Maddox  v. 

2  State  v.  Madison  (City),  15  Wis.  Graham,  2  Mete.  (Ky.)  56 ;  Robin- 
30.  son  v.    Butte  Co.  (Sup'rs),  43  Cal. 

3  Com.  v.  Pittsburgh,  88  Pa  St.  353;  State  v.  Clinton  Co.  (Com'rs), 
66 :  United  States  v.  Jefferson  Co.,  6  Ohio  St.  280. 

5  Dill.    310 ;    State    v.    Davenport  5  State  v.  Keokuk  (City),  9  Iowa, 

(City),  12  Iowa,  335;  Flagg  v.  Pal-  438;  Higgins  v.  Chicago  (City),  18 

myra  (Town),  33  Mo.  440 ;  Morgan  111.  276. 

v.  Com.,  55  Pa.  St.  456.  6  State  v.  Wilson,  17  Wis.  687. 

<  State  v.  Gates,  22  Wis.  210 ;  Com.  7  State  v.  Harris,  17  Ohio  St.  608. 

v.  Pittsburgh  (Select  Council),  34  6  Com.  v.  Pittsburgh  (Select  Coun- 

Pa,   St.   499 ;  Meyer  v.   Porter,  65  cil),  34  Pa.  St.  496 ;  State  v.  Mani- 

Cal.  67 ;  Pegram  v.  Cleveland  Co.  towoc  (Mayor),  52  Wis.  423 ;  State 

(Com'rs),   64  N.    C.   557 ;    State  v.  Board  of  Education  v.  West  Point, 

Beloit  (Sup'rs),  20  Wis.  79 ;  State  v.  50  Miss.  638. 

New  Orleans  (City),  34  La.  An.  477 ;  9  People  v.  Columbia  Co.  (Sup'rs), 

Columbia  Co.  (Com'rs)  v.  King,  13  10  Wend.  363. 


§  130.]  TO    TUBLIC    OFFICERS    AND    CORPORATIONS.  163 

has  been  so  established  that  it  cannot  be  legally  contro- 
verted. The  proof  of  the  validity  of  such  claim  should  be 
equivalent  to  a  debt  of  record  or  the  judgment  of  a  court.1 
Unadjusted  claims  must  first  be  audited  and  ordered  to  be 
paid.2  If,  however,  the  law  under  which  a  debt  was  con- 
tracted specially  provides  that  a  tax  shall  be  levied  for  its 
payment,  a  mandamus  will  be  granted  for  that  purpose 
without  the  necessity  of  first  adjudicating  and  auditing  the 
claim.3  Absolute  and  unconditional  obligations,  already  as- 
certained and  audited,  are  in  themselves  on  their  face  an 
order  and  authority  to  the  proper  officer  to  pay  them,  and 
upon  his  refusal  a  mandamus  will  lie  to  compel  the  levy  of 
a  tax  to  pay  them,  if  the  public  corporation  meets  its  obli- 
gations by  taxation.4  Therefore  a  mandamus  will  issue  to 
compel  the  levy  of  a  tax  to  pay  claims  which  have  been 
allowed  by  the  county  commissioners5  or  b}^  a  township 
board/  For  the  same  reason  a  mandamus  lies  to  compel 
the  levy  of  a  tax  to  pay  a  judgment,  which  itself  is  a  judicial 
auditing  of  a  claim.7     Ordinarily  the  writ  will  not  lie  to  en- 

1  Cabaniss   v.   Hill,  74    Ga.   845 ;  Miss.  542 ;  Warren  Co.  (Sup'rs)  v. 

State  v.   McLeod  Co.   (Com'rs),  27  Klein,  51  Miss.  807 ;  Police  Board  v. 

Minn.  90.  Grant,    9   Sm.    &   M.    77.     Contra. 

-  Leach  v.  Fayetteville  (Com'rs),  People  v.  Clark  Co.  (Sup'rs),  50  111. 

84  N.  C.  829;  State  v.  Clay  Co.,  46  213. 

Mo.  231 ;  Coy  v.  Lyons  (City  Coun-  6  Stevenson     v.     Summit     (Dist 

cil),  17  Iowa,  1;  Mansfield  v.  Fuller,  Town),   35    Iowa,   462;    Hosier    v. 

50  Mo.  338 ;  School  Dist  v.  Boden-  Higgins    Town     Board,    45    Mich. 

hamer,  43   Ark.    140;  State   Board  340;  State  v.  Perrysbnrg  Township 

Ed.  v.  West  Point,  50  Miss.  638.  (Board   of   Educ),  27   Ohio  St  96. 

3  State  v.  Pacific  (Town  Trustees),  Contra,  State  v.  Pacific  (Town 
61   Mo.    155;    Coy  v.   Lyons  (City  Trustees),  61  Mo.  155. 

Council),  17  Iowa,   1;  State  Board  'State  v.  Johnson  Co.  (Board  of 

Ed.  v.  West  Point,  50  Miss.  638.  Equal.),  10  Iowa,  157  ;  Cromartie  v. 

4  Leach  v.  Fayetteville  (Com'rs),  Bladen  (Com'rs),  85  N.  C.  211; 
84  N.  C.  829.  People  v.  San  Francisco  (Sup'rs),  21 

5  Jefferson  Co.  v.  Arrghi,  51  Miss.  Cal.  668;  Dearing  v.  Shepherd,  78 
667 ;  Klein  v.  Smith  Co.  (Com'rs),  Ga.  28 ;  Gooch  v.  Gregory,  65  N.  C. 
54  Miss.  254;  Rodman  v.  Larue  Co.  142;  Lutterloh  v.  Cumberland  Co. 
(Just),  3  Bush,  144;  People  v.  (Com'rs),  65  N.  C.  403;  George's 
Livingston  Co.  (Sup'rs),  68  N.  Y.  Creek,  etc.  Co.  v.  Allegany  Co. 
114;  Beard  v.  Lee  Co.  (Sup'rs),  51  (Com'rs),   59  Md.   255;    Palmer   v. 


164  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  [§  131. 

force  a  judgment,  but  it  lies  against  a  public  corporation, 
since  there  is  no  other  remedy,  either  because  an  execution 
is  not  allowed  by  law,1  or  it  has  been  returned  nulla  hona? 
It  must,  however,  appear  that  the  proper  officers  have 
power  to  levy  taxes;3  otherwise  the  writ  will  be  refused.4 
Also,  to  prevent  a  failure  of  justice,  a  writ  of  mandamus 
will  issue  to  compel  the  levy  of  a  tax  to  pay  a  claim  on 
which  a  suit  cannot  be  brought; 5  as  when  the  relator  has 
a  claim  only  on  a  special  fund,  which  is  in  the  custody  of 
the  county  court,  in  which  case  the  writ  will  issue  to  audit 
and  pay  or  provide  for  the  payment  of  such  claim." 

§  131'.  In  a  m  and  am  ns  on  a  judgment  is  the  latter  con- 
clusive?—  Upon  an  application  for  a  mandamus  to  compel 
the  levy  of  a  tax  to  pay  a  judgment,  it  is  too  late  to  urge 
that  the  relator  was  not  entitled  to  his  judgment,7  that  the 
municipality  has  no  power  to  levy  the  tax  demanded,8  or 
that  the  coupons  sued  on  were  invalid:  such  objections 
must  be  urged  before  a  judgment  is  obtained.  So  defenses, 
which  were  urged  in  the  suit  in  which  the  judgment  was 
obtained,  cannot  be  urged  again  in  a  mandamus  proceeding 
to  compel  the  payment  of  the  judgment.9    When,  however, 

Stacy,  44  Iowa,  340 ;  State  v.  Gates,  2  Fisher  v.  Charleston  (Citj),   17 

22  Wis.  210 ;    Coy  v.  Lyons  (City  W.  Va.  595 ;  Britton  v.  Platte  City, 

Council),  17  Iowa,   1 ;  Huntington  2    Dill.    1 ;    Fisher    v.    Charleston 

v.  Smith,  25  Ind.  486 ;  Boynton  v.  (Mayor),  17  W.  Va.  628. 

Newton  (Dist.  Town),  34  Iowa,  510;  3  state    v.    Milwaukee   (City),   20 

Butz  v.   Muscatine  (City),  8  Wall.  Wis.  87. 

575;    United    States  v.   Buchanan  4  state  v.  Maysville,  12  S.  C.  76. 

Co.,  5  Dill.   285;  United   States  v.  5  Klein  v.  Smith  Co.  (Sup'rs),  54 

Sterling  (City),  2  Biss.  408 ;  United  Miss.  254. 

States  v.  Galena  (City),  10  Biss.  263 ;  <>  Mansfield  v.  Fuller,  50  Mo.  338 ; 

Olney  (City)  v.  Harvey,  50  111.  453 ;  State    v.   Bollinger  Co.   (Just),   48 

State  v.  Milwaukee  (Com.  Council),  Mo.  475. 

20  Wis.  87;  Galena  (City)  v.  Amy,  7  State  v.  Gates,  22  Wis.  210. 

5  Wall.   705;  Norris  v.   Baltimore  8  United  States  v.  New  Orleans, 

(City),  44  Md.  598.  98  U.  S.  381 ;   Ralls  Co.  Court  v. 

•  Duncan  v.   Louisville  (City),   8  United  States,  105  U.  S.  733. 

Bush.  98;  Olney  (City)  v.  Harvey,  9  City  v.  Sansum,  87  I1L  182. 
50  111.  453 ;  Hughes  v.  Craven  Co. 
(Com'rs),  107  N.  C.  598. 


§  132.]  TO    PUBLIC    OFFICERS    AND   CORPORATIONS.  165 

a  party  asks  for  a  mandamus  to  enforce  the  payment  of 
his  judgment  against  a  municipality  on  coupons  cut  from 
its   bonds,  and  is  compelled  to  go  behind  his  judgment  in 
order  to  obtain  the  remedy  pertaining  to  the  bonds,  the 
court  cannot  decline  to  take  cognizance  of  the  fact  that 
the  bonds  are  utterly  void,  and  will  be  compelled  to  refuse 
the  writ  to  make  the  officers  levy  a  tax  to  pay  coupons  cut 
from  those  bonds,  since  the  writ  cannot  confer  any  authority 
on  the  taxing  officers  in  addition  to  what  they  had  before.1 
§  132.  In  a  mandamus  to  levy  a  tax  to  pay  a  demand, 
public  necessities  must  be  first  considered.—  In  ordering 
the  payment  of,  or  the  levy  of,  a  tax  to  pay  a  claim,  the 
courts  will  not  allow  public  interests  to  suffer  in  order  to 
protect  a  private  interest :  when  they  conflict,  the  latter  will 
be  compelled  to  yield.     A  mandamus  will  not  be  issued  to 
compel  a  municipal  corporation  to  pay  a  claim,  when  the 
funds  on  hand  are  required  for  its  ordinary  and  necessary 
expenses,  and  the  diversion  thereof  would  tend  to  disor- 
ganize and  disrupt  such  municipality;2  but  the  municipality 
may  be  ordered  to  pay  over  to  the  relator  its  surplus,3  or 
the  surplus  arising  from  year  to  year,  and  it  may  be  en- 
joined from  spending  any  money  except  for  its  ordinary 
current  expenses.4     When  a  municipal  corporation  is  called 
upon  to  levy  a  tax  to  pay  a  claim  against  it,  and  its  power 
of  taxation  is  limited  as  to  the  amount  of  tax  it  can  levy, 
the  proceeds  of  such  taxation  will  be  first  applied  to  the 
payment  of  its  ordinary  and  necessary  expenses;5  and  it  is 
a  sufficient  reply  to  an  application  for  such  a  mandamus, 
that  all  the  money  that  can  be  so  raised  is  absolutely  re- 
quired for  such  expenses.6     AVhen  a  debt  is  payable  out  of 

i  Brownsville  v.  Loague,  129  U.  S.  4  Corpus  Christi  (City)  v.  Woess- 

493.  ner,  58  Tex.  462. 

2Williamsport  (City)  v.  Com.,  90  5Von  Hoffman  v.  Quincy  (City). 

Pa.   St.   498;    State  v.   Macon  Co.  4  Wall.  535;  Coffin  v.   Davenport 

Court,  68  Mo.  29 ;  Grant  v.  Daven-  (City  Council),  26  Iowa,  515. 

port  (City),  36  Iowa,  396.  6Clay  Co.   v.  McAleer,  115  U.  S. 

» State  v.  Shreveport  (City),  29  La  610;     Coffin    v.    Davenport    (City 

An.  658.  Council),  26  Iowa,  515;  Cromartie 

v.  Bladen  (Com'rs),  85  N.  C.  211. 


1 


1GG  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  [§  133. 

the  yearly  income  of  a  municipality,  the  court  may  require 
the  return  to  show  what  the  income  is,  and  how  it  is  ex- 
pended, since  the  court  will  allow  none  of  it  to  be  employed 
for  other  than  ordinary  purposes  so  long  as  creditors  have 
a  claim  thereto.1  If  it  appears  that  the  property  of  the 
municipality  is  undervalued  in  the  assessment,  the  court 
will  order  the  tax  to  be  levied.2  When  a  levy  is  ordered 
in  order  to  pay  a  certain  demand,  it  is  not  sufficient  to 
make  a  general  levy  which  includes  the  amount  of  sucl 
demand,  but  there  must  be  a  special  levy  to  pay  that  particu- 
lar demand,  and  the  proceeds  of  the  levy  must  be  set  apart 
to  discharge  the  claim.3  When  a  municipality  is  not  au- 
thorized to  levy  a  tax  sufficient  to  discharge  a  claim  in  full, 
the  court  will  order  it  to  pay  a  proportion  thereof  each 
year,  and  to  levy  a  tax  sufficient  for  that  purpose,  and  will 
not  require  the  relator  to  bring  successive  actions  for  a  man- 
damus.* When  the  proper  officers  knowingly  levy  a  tax 
insufficient  to  discharge  a  claim,  they  may  be  compelled  by 
mandamus  to  make  a  larger  levy.5  If  the  levy  has  been 
made  and  the  proper  officer  is  proceeding  in  the  collection 
thereof  with  such  dispatch  as  the  law  requires  and  permits, 
the  relator  cannot  complain.6  Should  the  tax  not  produce 
a  sufficient  amount  to  pay  the  claim  as  ordered,  the  relator 
is  not  compelled  to  wait  till  the  balance  can  be  collected 
from  delinquents,  but  may  apply  for  another  mandamus? 
§133.  Mandamus  to  collectors  of  revenue.— A  man- 
damus is  the  more  efficient  and  appropriate  remedy  to  com- 

1  Beaulieu  v.  Pleasant  Hill  (City),  5R0bmson  v.  Butte  Co.  (Sup'rs), 
4  McCrary,  554.  43  Cal.  353. 

2  Coffin  v.  Davenport  (City  Coun-  «  State    v.   Davenport    (City),    12 
cil),  26  Iowa,  515.  Iowa.  3*35. 

3 State    v.    Davenport    (City),    12  "Fisher  v.   Charleston  (City),   17 

Iowa,  335.  w-  Va-   r>95  '■>  Fisher  v.   Charleston 

*  Coy  v.  Lyons  (City  Council),  17  (Mayor),    17   W.    Va.   028.      It  lias 

Lowa,  1 ;  Coffin  v.  Davenport  (City  been  held  that  the  relator  must  first 

Council),    26    Iowa,    515;     United  proceed  against  the  t.ix  collector  to 

States  v.  Galena  (City),  10  Diss.  263 ;  compel  him  to  collect  all  of  the  tax 

state  v.  Weir  (Neb.,  Sept.  22,  1891),  already  levied.     Duperier  v.  Iberia 

49  N.  W.  Rep.  785.  Parish  (Police  Jury),  31  La.  An.  709. 


§   134.]  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  167 

pel  collectors  of  public  revenue  to  proceed  to  perform 
their  duty.1  It  lies  to  compel  a  tax  collector  to  make  to  a 
purchaser  at  a  tax  sale  a  deed  to  the  land  sold ;  '2  but  if 
such  deed  is  based  on  an  irregular  assessment  and  will  con- 
vey no  title,  the  writ  will  be  refused.3  When,  however, 
the  act  sought  is  not  an  official  duty,  its  performance  will 
not  be  enforced  by  a  mandamus.  When  a  county  collector 
of  taxes  is  allowed  a  percentage  on  the  delinquent  taxes 
collected,  which  does  not  go  into  the  county  treasury,  and 
with  which  he  is  not  charged,  the  county  auditor  cannot 
be  required,  at  the  relation  of  his  predecessor,  to  draw  a 
warrant  on  him  for  such  percentage  belonging  to  such  pred- 
ecessor, but  collected  by  him.  The  proper  remedy  is  for 
the  predecessor  to  bring  suit  against  him  for  the  money  so 
collected.4 

§  131.  Mandamus  to  obtain  possession  of  public  funds. 
An  officer,  who  is  entitled  to  the  possession  of  public  funds 
which  are  in  the  custody  of  another  officer,  may  obtain 
them  by  the  writ  of  mandamus?  The  writ  has  been  issued : 
to  compel  a  tax  collector  to  pay  money  into  the  public 
treasury,  when  he  failed  to  do  so  within  the  time  allowed 
him  by  law ; 6  to  compel  a  county  treasurer  to  pay  to  the 
proper  local  officers  the  amount  of  liquor  taxes  to  which 
they  wrere  entitled  by  law; 7  to  compel  a  town  treasurer  to 
pay  township  library  funds  to  the  treasurer  of  the  board  of 
school  inspectors ; 8  to  compel  a  county  treasurer  to  pay  to 
the  township  officers  the  money  raised  by  taxation  for  its 
use;9  to  compel  a  county  treasurer  to  pay  over  money  in 
his  hands  collected  for  and  belonging  to  the  treasurer  of  a 

1  State  v.  Whitworth,  8  Lea,  594.     vided  by  law,  the  writ  was  refused. 

*  State  v.  Mantz,  62  Mo.  258 ;  Kid-    State  v.  Boullt,  26  La  An.  259. 

der  v.  Morse,  26  Vt.  74.  7East   Saginaw  v.  Saginaw   Co. 

» Bosworth  v.  Webster,  64  Cal.  1.  Treas.,  44  Mich.  273. 

*  Thomas  v.  Hamilton  Co.  (Audi-  s  People  v.  Mahoney,  30  Mich.  100. 
tor),  6  Ohio  St.  113.  » Cass    Township  v.    Dillon,     16 

5  Hon  v.  State,  89  Ind.  249.  Ohio  St  38 ;   State    v.  Hoeflinger. 

« People  v.    Austin,   46  Cal.  520.     31  Wis.  257. 
Where  another  remedy  was  pro- 


168  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  [§  135. 

district  school  board ; l  to  compel  the  collectors  of  the  taxes 
of  different  wards  to  pay  to  the  trustees  of  the  public  schools 
all  the  money  raised  by  taxation  for  such  purposes ; 2  to  com- 
pel the  trustee  of  a  township  to  pay  over  to  the  school 
trustees  of  a  town,  incorporated  out  of  a  part  thereof,  its 
proportion  of  the  school  funds  raised  by  taxation ; 3  and  to 
compel  a  tax  collector  to  pay  the  taxes,  collected  to  make 
payments  on  bonds  issued  in  aid  of  a  railroad,  to  the  railroad 
commissioners  of  the  town.4  Though  the  officer  has  already 
paid  the  funds  to  the  wrong  officer,  yet  a  mandamus  will 
run  against  him,  although  he  has  by  his  action  exposed 
himself  to  loss  or  made  his  duty  difficult  or  inconvenient.5 
§  135.  Mandamus  to  disbursing  officers. —  A  writ  of 
mandamus  will  lie  to  compel  a  public  disbursing  officer  to 
pay  accounts  out  of  the  public  funds  in  his  hands,  when  such 
accounts  have  been  allowed  by  the  proper  officers  or  tri- 
bunals, and  no  duty  devolves  upon  him  except  the  minis- 
terial duty  of  making  the  payment.6  When,  however,  such 
disbursing  officer  refuses  to  pay  such  accounts  believing 
them  to  be  illegal,  or  that  the  auditing  officers  had  no  ju- 
risdiction in  the  matter,  the  court  on  an  application  for  a 
mandamus  to  compel  payment  will  investigate  the  subject 
as  to  the  legality  or  jurisdiction  but  not  as  to  the  amount 
of  the  allowance,  and  will  refuse  the  application  if  the 
ground  of  objection  is  proven  to  be  correct.7  When  such  dis- 
bursing officer  has  no  funds  on  hand  applicable  to  claims 

1  State  v.  Burkhardt,  59  Mo.  75.  Lawrence,   6    Hill,   244 ;    Com.    v. 

2  State  v.  Hammell,  31  N.  J.  L.  Johnson,  2  Binn.  275;    Hendricks 
446.  v.  Johnson,  45  Miss.  644 ;  Keller  v. 

3  Johnson  v.  Smith,  64  Ind.  275.  Hyde,  20  Cal.  593 ;  State  v.  Earle,  42 

4  People  v.  Brown,  55  N.  Y.  180.  N.  J.  L,  94 ;  Baker  v.  Johnson,  41 

5  People  v.  Brown,  55  N.  Y.  180.  Me.  15 ;  People  v.  Palmer,  52  N.  Y. 

6  Johnson  v.  Campbell,  39  Tex.  83;  83:  State  v.  Gandy,  12  Neb.  232 
Thomas  v.  Smith,  1  Mont.  21 ;  State  Huff  v.  Knapp,  5  N.  Y.  65 ;  Q.  v 
v.  Callaway  Co.  (Treas.),  43  Mo.  228 ;  Oswestry    (Treas.),    12    Q.    B.    239 
Day  v.  Callow,  39  Cal.  593 ;  People  Needham  v.  Thresher,  49  Cal.  392. 
v.   Johnson,    100    111.    537;    People  See  §  103. 

v.  Edmonds,  15  Barb.  529;  People        "State  v.   Callaway  Co.  (Treas.), 
v.  Edmonds,  19  Barb.  468 ;  People  v.     43  Mo.  228 ;  People  v.  Lawrence,  6 


§  135.]  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  1G9 

of  the  nature  of  that  for  which  payment  is  sought,  and  it 
so  appears  by  the  officer's  return,  the  writ  of  mandamus  to 
compel  payment  will  be  refused.1  He  will  not  be  ordered 
to  pay  the  claim  out  of  moneys  subsequently  coming  to  his 
hands,  because  he  is  not  at  the  time  derelict  in  his  duty 
and  not  amenable  to  the  writ.2  Where,  however,  the  offi- 
cer has  erroneously  paid  out  the  money  on  warrants  not 
properly  chargeable  to  that  fund,3  or  the  money  has  been 
improperly  transferred  on  his  books  to  another  fund,4  the 
writ  will  issue,  and  he  may  be  required  to  correct  his  books 
accordingly;  the  writ  may  issue  for  the  express  purpose 
alone  of  compelling  a  transfer  of  funds  from  one  account  to 
another  on  the  books  of  a  disbursing  officer.5  When  with 
a  view  to  an  allowance  of  interest  the  law  requires  a  treas- 
urer, who  fails  to  pay  a  warrant  for  lack  of  funds,  to  make 
an  indorsement  on  the  warrant  of  that  fact,  he  may  be  re- 
quired by  the  writ  of  mandamus  to  perform  that  duty.6  If 
any  duty  devolves  on  the  officer  besides  payment,  as  if  he 
must  first  determine  the  validity  of  the  claim,  the  writ  of 
mandamus  will  not  lie  to  compel  him  to  pay  the  claim.  He 
may  require  it  to  be  adjudicated  first.7  When  a  salary  is 
fixed  by  law,  it  need  not  be  adjudicated  or  audited.8  Though 
a  city  maybe  liable  for  the  damages  sustained  while  it  hesi- 
tates whether  to  abandon  condemnation  proceedings  or  to 
pay  the  damages  assessed,  yet  a  mandam/us  will  not  lie  to 
compel  the  payment  of  such  damages  till  they  have  been 
ascertained  and  a  judgment  rendered  therefor.9     When  the 

Hill,  244 ;  Keller  v.  Hyde,  20  Cal.  52  N.  J.  L.  69 ;  Rice  v.  Walker,  44 

593;  People  v.  Wendell,   71  N.  Y.  Iowa,  458;   Williamsport  (City)  v. 

171 ;  State  v.  Hastings,  10  Wis.  518.  Com.,  90  Pa.  St.  498. 

1  People  v.  Stout,  23  Barb.  338;  &  State  v.  Stone,  69  Ala.  206. 
People  v.  Frink,  32  Mich.  96 ;  State  6  Needham  v.  Thresher,  49  Cal.  392. 
v.  Smith,  8  S.   C.  127 ;  Mitchell  v.  '  State  v.  Snodgrass,  98  Ind.  546. 
Speer,  39  Ga.  56;  Day  v.  Callow,  39  » State  v.  Starling,  13  S.  C.  262. 
Cal.  593.  See  §  105. 

2  Day  v.  Callow,  39  Cal.  593.  9  Norris   v.  Baltimore   (City),  44 

3  People  v.  Stout,  23  Barb.  338.  Md.  598. 

4  State  v.  Union  (Town  Council) 


170  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  [§   135. 

statute  contains  the  conditions  for  payment  out  of  a  certain 
fund,  such  payment  may  be  enforced  by  mandamus}   When 
a  municipal  charter  makes  it  the  duty  of  the  treasurer  to  pay 
the  interest  on  certain  bonds,  as  it  falls  due,  out  of  a  fund 
provided  for  that  purpose,  a  mandamus  lies  to  compel  such 
payment.2     When  the  legislature,  having  the  power,  appro- 
priates money  to  pay  for  work  of  public  necessity  which  was 
done  under  an  invalid  contract,  a  disbursing  officer  can- 
not object  that  the  state  was  not  bound  to  pay,  or  that  the 
legislature  was  not  fully  informed,  and  refuse  to  pay,  and 
a  mandamus  will  issue  to  compel  him  to  make  payment.3 
It  is  the  ministerial  duty  of  a  county  treasurer,  which  may 
be  enforced  by  mandamus,  to  pay  a  judgment  against  the 
county,  when  the  board  of  supervisors  of  the  county  have 
resolved  not  to  appeal.4     This  writ  has  been  issued  to  a 
county  treasurer :  to  sell  land  for  delinquent  taxes  and  to 
give  the  purchaser  a  receipt  for  the  money  paid  by  him ; 5  to 
pay  out  to  the  proper  person  money  for  the  particular  pur- 
pose for  which  the  legislature  gave  it  to  the  county;6  to 
issue  his  warrant  for  the  collection  of  a  tax ; 7  to  assign  the 
certificate  of  sale  of  land  for  taxes;8  to  pay  over  to  a  judg- 
ment creditor  the  money  collected  to  pay  his  judgment,9 
and  to  pay  to  a  purchaser  of  land  at  a  tax  sale  on  redemp- 
tion thereof  such  money  as  was  received  by  him  at  such 
redemption.10     The  writ  has  been  issued  to  the  treasurer 
of  a  town:  to  issue  his  warrant  of  distress  against  a  col- 
lector of  taxes  for  neglecting  to  collect  a  school  district 
tax,11  and  to  pay  it  over  in  the  time  fixed  in  the  assess- 
or's  warrant ;  M   to   a   school  fund    commissioner   to   pay 
over  money  declared  by  judgment  to  be  due  to  the  re- 

i  Sessions  v.  Boykin,  78  Ala.  328.        '  People  v.  Halsey,  37  N.  Y.  344. 

2  Meyer  v.  Porter.  65  Cal.  67.  8  State  v.   Bowker,  4  Kans.  114; 

3  People  v.  Schuyler,  79  N.  Y.  189.  State  v.  MagiU,  4  Kans.  415. 

4  Bank  of    California  v.  Shaber,        9  Brown  v.  Crego,  32  Iowa,  498. 
55  Cal.  322.  10  Murphy  v.  Smith,  49  Ark.  37. 

5  State  v.  Helmer,  10  Neb.  25.  UTremont  School  Dist.  v.  Clark, 

6  Pike  Co.  (Com'rs)  v.  People,  11  33  Me.  482. 

111.  202.  u  Waldron  v.  Lee,  5  Pick.  323. 


§  136.]  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  171 

lator  out  of  funds  in  his  possession;1  and  to  a  town  treas- 
urer to  deliver  bonds  to  water  commissioners  whose  duty 
it  was  to  sell  them  and  who  were  entitled  to  their  cus- 
tody.2 The  writ  of  mandamus  has  been  refused:  to  com- 
pel loan  commissioners  to  pay  certain  bonds  in  gold  coin, 
when  the  only  funds  in  their  hands  for  that  purpose  were 
legal  tender  notes ; 3  to  compel  a  county  treasurer  to  pay 
certain  county  orders,  when  other  older  county  orders  re- 
mained unpaid,  which  would  exhaust  all  the  money  in  his 
hands  and  which  by  law  were  payable  before  those  in  suit ; 4 
to  compel  the  pa}rment  of  a  claim  from  a  certain  assess- 
ment fund,  when,  in  a  suit  brought  by  a  tax-payer  to  recover 
the  portion  of  such  fund  paid  by  him  under  a  levy,  the  as- 
sessment was  declared  to  be  invalid;5  to  a  city  auditor  to 
pay  claims  prior  to  their  audit  and  approval  by  the  city 
council  as  required  by  ordinance;6  and  to  compel  a  county 
treasurer  to  pay  a  claim,  wThen  he  had  in  good  faith,  before 
the  issue  of  the  alternative  writ,  paid  over  all  the  funds  in 
his  hands  to  his  successor  in  office.7  In  accordance  with  a 
firmly  established  principle,  when  from  extraneous  circum- 
stances a  well-founded  doubt  arises,  either  to  as  to  the  right 
of  the  applicant  to  receive  or  of  the  officer  to  pay,  the  man- 
damus will  be  refused.8  In  some  cases  the  writ  has  been 
refused,  though  we  believe  contrary  to  the  weight  of  au- 
thority, because  an  action  would  lie  on  the  officer's  bond 
for  neglect  of  duty,9  or  because  he  rendered  himself,  by 
such  refusal  to  do  his  duty,  liable  to  attachment  or  indict- 
ment.10 

§  136.  Mandamus  concerning  the  payment  of  salaries. 
This  writ  is  the  appropriate  remedy  to  compel  a  municipal 

i  Hillis  v.  Ryan,  4  G.  Greene,  78.  *  State  v.  Lynch,  8  Ohio  St  347. 

2  Pearsons  v.  Ranlett,  110  Mass.  8  People  v.  Johnson,  100  111.587. 
118.  9  State  v.  Bridgman,  8  Kans.  458 ; 

3  People  v.  Cook,  39  Cal.  658.  State  v.   McCrillas,   4    Kans.    250. 

4  Mitchell  v.  Speer,  39  Ga.  56.  Contra,  Sessions  v.  Boykin,  78  Ala 

5  People  v.  East  Saginaw,  40  Mich.  328. 

336.  ^King  v.  Surrey  (Treas.),  1  Chit. 

«  Dubordieu  v.  Butler,  49  CaL  512.     650. 


172  TO    PUBLIC    OFFICERS    AND    CORPORATIONS.  [§   136. 

corporation,  or  an  officer  thereof,  to  audit  the  account  of  a 
public  officer  for  his  salary,  or  to  draw  a  warrant  therefor, 
or  to  pay  such  a  warrant.1  It  is  considered  that  it  would 
be  a  great  hardship  to  compel  a  public  officer  to  bring  suit 
for  hn  salary.2  When  such  salary  is  fixed  by  law,  it  is  not 
necessary  to  audit  it,  since  the  auditing  officers  have  no 
discretion  to  allow  or  reject  it.3  Some  courts,  ignoring  the 
delay,  expense  and  uncertainty  as  to  results,  have  refused 
the  writ  in  such  cases,  because  the  object  of  the  writ  is  to 
obtain  money,  and  the  same  object  might  be  attained  by  a 
suit  against  the  municipality  or  on  the  bond  of  the  delin- 
quent officer.4  Such  decisions  controvert  the  proposition, 
that,  when  a  claim  has  been  allowed  by  the  proper  author- 
ity, the  duty  of  an  auditing  officer  to  draw  a  warrant  there- 
for is  merely  a  ministerial  duty,  which  will  be  enforced  by 
a  mandamus; b  and  it  controverts  the  proposition  that,  when 
accounts  have  been  allowed  by  the  proper  officers  or  tri- 
bunals, the  duty  of  payment  by  a  public  disbursing  officer 
is  merely  ministerial,  and  that  a  mandamus  will  lie  to  com- 
pel the  performance  of  such  duty.6 

'  Huff  v.  Knapp,  5  N.  Y.  65.  State    v.   Hannon,   38    Kans.    593 ; 

2  McBride  v.  Grand  Rapids  (City),  People    v.  New  York  (Mayor),  25 
47  Mich.  236.  Wend.  680 ;    People  v.  Thompson, 

3  State  v.  Starling,  13  S.  C.  262.  25  Barb.  73.     See  §  17. 

4  State  v.  Lincoln  (Mayor),  4  Neb.  5See  §  126. 
260 ;  Lynch,  Ex  parte,  2  Hill,  45 ;  « See  §  135. 


CHAPTER  11. 

THE  USE  OF  MANDAMUS,  WHEN  THE  RIGHT  TO  A  PUBLIC 
OFFICE  OR  TO  MEMBERSHIP.  OR  TO  AN  OFFICE,  IN  A  PUB- 
LIC CORPORATION,  IS  CONCERNED. 

§  137.  Right  to  disfranchise  a  member  of  a  public  corporation. 

138.  Mandamus  to  order  elections. 

139.  Mandamus  to  count  the  votes  cast  at  an  election. 

140.  Mandamus  to  canvassing  boards  to  issue  a  certificate  of  elec- 

tion. 

141.  Mandamus  to  swear  an  officer  elect  into  office. 

142.  Mandamus  in  favor  of  one  holding  the  certificate  of  election. 

143.  Mandamus  to  put  into  office  not  granted,  when  there  is  a  de 

facto  incumbent 

144.  Whether  mandamus  lies  to  put  one  into  office  pending  a  con- 

test. 

145.  Mandamus  to  compel  an  officer  elect  to  assume  the  duties  of 

the  office. 

146.  Mandamus  is  allowed  in  some  states  to  try  the  title  to  an  office. 

147.  When  a  public  officer  may  be  removed  from  an  office. 

148.  Mandamus  lies  to  restore  an  officer  wrongfully  removed  from 

office. 

149.  Mandamus  will  not  lie  to  seat  an  officer  who  may  be  removed 

at  once. 

150.  Mandamus  when  an  officer  not  removed  but  another  party  in- 

trudes himself. 

151.  Mandamus  when  removal  from  office  is  discretionary. 

152.  Party  having  the  prima  fade  title  to  an  office  can  enforce  his 

rights  as  such  officer  by  the  writ  of  mandamus. 

153.  Subject  continued, 

154.  Mandamus  for  books  and  paraphernalia  of  office  by  party  with 

the  prima  facie  title. 

155.  Subject  continued. 

156.  Mandamus  not  lie  to  private  individual  to  surrender  office 

books,  etc. 

§  137.  Right  to  disfranchise  a  member  of  a  public  cor- 
poration.—  The  writ  of  mandaimis  has  often  been  resorted 
to  in  order  to  determine  the  right  to  hold  a  public  office, 


174  MANDAMUS — RIGHT   TO    PUBLIC    OFFICE.  [§  138. 

or  to  hold  a  membership,  or  an  office,  in  a  public  corpora- 
tion.    It  was  decided  in  an  early  case,  that  no  freeman 
of  any  corporation  could  be  disfranchised  by  the  corpora- 
tion, unless  such  power  was  given  to  it  by  express  words 
in  its  charter,  or  was  authorized  by  prescription,  except  in 
the  case  of  conviction  of  a  felony  in  a  court  of  law.1     In 
America  no  such  question  seems  ever  to  have  been  raised.2 
In  England  such  power  has  been  claimed.     If,  however, 
the  disfranchisement  is  wrongful,  the  party  may  be  restored 
to  his  membership  by  the  writ  of  mandamus.3     So  when  a 
person  has  a  right  to  be  admitted  to  the  freedom  of  a  pub- 
lic corporation,  he  may  resort  to  this  writ;4  but  he  cannot 
avail  himself  of  such  assistance,  unless  the  duty  of  admis- 
sion is  imperative  on  the  corporate  officers.5     Though  the 
words  disfranchisement  and  amotion  are  often  used  inter- 
changeably, disfranchisement  properly  refers  to  a  removal 
from  membership  in  a  corporation,  and  amotion  only  to  a 
removal  from  an  office,  leaving  the  membership  unaffected. 
§138.  Mandamus  to  order  elections.— Boards  or  offi- 
cers, whose  duty  it  is  to  order  elections,  whether  the  law 
requires  them  to  order  elections  at  a  certain  time,6  or  to  fill 
vacancies  which  have  occurred  in  offices,7  may  by  mandamus 
be  forced  to  discharge  this  duty.     If,  however,  an  election 
has  been  held  and  its  validity  is  a  doubtful  question,8  or 
there  is  already  a  de  facto  incumbent,  the  writ  will  be  re- 

i  Bang's  Case,  11  Coke,  93;  King        eQibbs  v.  Bartlett.  63  Cal.  117; 

v.  Doncaster  (Mayor),  2  Ld.  Raym.  McConihe  v.  State,  17  Fla.  238 ;  Reg. 

1564.  v.  Bradford  (Mayor),  4  Eng.  L.  &  E. 

2  Com.  v.  Guardians  of  the  Poor,  6  194. 

S.  &  R.  469,  may  be  such  a  case,  but  I  State  v.  Rahway  (Com.  Council), 

from  the  report  it  seems  uncertain  33  N.  J.  L.  110 ;  R.  v.  Wigan  (Corp.), 

whether  the  coloration  was  a  pub-  2  Burr.  782;  King  v.  Grampond,  6 

lie  one  and  whether  the  relator  had  T.  R.  301. 

been  disfranchised  or  removed  from  » Rex  v.  Oxford,  6  A.  &  E.  349 ; 

an  office.  Frost  v.  Chester  (Mayor),  5  El.  & 

3  Middleton's  Case,  Dyer,  333.  Bl.  531 ;  Rex  v.  Bankes,  3  Burr. 
*  Townsend's  Case,  1  Lev.  91.  1452 :  State  v.  Dunn,  1  Minor  (Ala.), 
s  Rex  v.  Eye  (Bailiffs),  1  B.  &  C.  46 ;  Com.  v.  Co.  Com'rs,  5  Rawle,  45. 

85. 


;;  i :;',»,  140.]     mandamus— right  to  public  office.  175 

fused.1  In  such  cases  the  writ  is  refused,  because  there  is 
another  remedy  by  quo  warranto  to  oust  the  incumbent.2 
When,  however,  there  is  no  other  way  to  decide  the  right 
to  the  office,  the  writ  will  be  granted.3  The  writ,  ordering 
a  new  election,  will  also  be  granted  when  it  is  plain  that 
such  prior  election  was  merely  colorable  and  void;4  and  it 
has  been  granted  when  it  was  plain  that  the  person  already 
elected  was  not  qualified  for  the  office,  but  it  was  not  is- 
sued till,  on  a  rule  to  show  cause  why  he  should  not  appear 
to  be  sworn  into  office,  he  had  made  return  admitting  his 

ineligibility.5 

§  139.  Mandamus  to  canvass  the  votes  cast  at  an  elec- 
tion.— When  the  proper  officers  refuse  to  canvass  the  votes 
cast  at  an  election,  a  mandamus  will  lie  to  compel  them  to 
do  so,6  and  if  an  ordinance  is  first  necessary,  a  city  council 
will  be  required  to  pass  such  an  ordinance.7 

§  140.  Mandamus  to  canvassing  hoards  to  issue  a  cer- 
tificate of  election.—  A  mandamus  will  lie  to  compel  the 
canvassing  officers  to  issue  a  certificate  of  election  to  a 
person  who  was  duly  elected  to  an  office,  though  another 
person  may  have  received  the  certificate  and  may  be  in  pos- 
session of  the  office.8  Such  action  does  not  determine  the 
right  to  the  office,  but  puts  the  party  in  a  position  to  assert 
his  rights,  which  in  some  cases  otherwise  he  could  not  do, 
and  a  quo  warranto  may  still  be  necessary  to  oust  the  in- 
cumbent.9 Where,  however,  a  quo  warranto  would  still  be 
i  Q  v.  St.  Martins  (Guar,  of  Poor),  ■  King  v.  Bedford  (Corp.),  1  East, 
17  Ad.  &  E.  (N.  S.)  149;  State  v.    79  ,.....„ 

Dunn,  1  Minor  (Ala.),  46.  « Q-  v.  Leeds  (Mayor),  11  Ad.  &  E. 

2  Rex  v.  Oxford,  6  A.  &  E.  349;     512. 
Frost  v.  Chester  (Mayor),  5  El.  &        Harrow  v.  People  8  Colo.  417 
B1  531  8  People  v.  Rives.  27  111.  242  ;  State 

so  t  St.  Martins  (Guar,  of  Poor),    v.  Williams,  99    Mo.   291;   French 
17  Ad.  &  E.  (N.  S.)  149.  v.    Cowan,   79    Me.    426;    State  v. 

4  Rex  v  Oxford,  6  A.  &  E.  349;  Newman,  91  Mo.  445;  Strong,  Peti- 
Frost  v.  Chester  (Mayor),  5  El.  &  turner,  20  Pick.  484 ;  Ellis  v.  Bristol 
Bl  531;  Rex  v.  Stoke-Damerei  (Co.  Com'rs),  2  Gray,  370. 
(Minister),  5  A.  &  E.  584;  Rex  v.  » Ellis  v.  Bristol  (Co.  Com  rs)  2 
Cambridge  (Mayor).  4  Burr.  2008;  Gray,  370;  Strop g,  Petitioner,  20 
Rex  v.  Bankes,  3  Burr.  145 : ;  Bui-  Pick.  484 ;  People  v.  Hilhard,  29  111. 
ler's  Nisi  Prius,  197,  198.  413. 


176  MANDAMUS EIGHT    TO    PUBLIC    OFFICE.       [§§   141.   142. 

required,  and  under  their  laws  nothing  would  be  attained 
bv  the  issue  of  the  writ,  it  has  been  refused.1  If  the  board 
or  tribunal  has  by  law  the  power  to  determine  all  questions 
as  to  the  election  and  the  returns  and  the  qualifications  of 
the  candidates,  under  the  general  rule  that  the  action  of  a 
body  possessing  deliberative  functions  cannot  be  reviewed 
by  mandamus,  such  body  cannot  be  required  to  grant  a 
certificate  of  election  to  a  person,  nor  to  admit  him  to  the 
office,  when  it  has  already  decided  adversely  to  his  claims.2 

§  141.  Mandamus  to  swear  an  officer  elect  into  office.— 
So  this  writ  may  be  used  to  compel  the  proper  officers  to 
swear  into  office  one  who  has  been  properly  elected  or  ap- 
pointed thereto; *  but  it  will  not  lie  in  the  case  of  an  officer 
against  whom  a  judgment  of  ouster  has  been  given,  since 
such  judgment  is  a  bar  to  such  an  application  so  long  as  it 
is  in  force.4 

§  142.  Mandamus  in  favor  of  one  holding  the  certifi- 
cate of  election. —  A  person  who  has  the  commission  for 
or  the  proper  certificate  of  election  to  an  office,  has  the 
prima  facie  right  to  the  office,5  and  he  may  resort  to  a  man- 
damus to  enforce  his  rights  in  connection  therewith.  Such 
evidence  of  title  can  only  be  called  in  question  in  a  direct 
proceeding  to  determine  the  right  to  the  office  by  quo  war- 
ranto or  in  a  contest  for  the  office.6  When  a  person  has 
been  duly  elected  or  appointed  to  an  office,  he  may  use  this 
remedy  to  obtain  admission  to  such  office,  when  admission 
has  been  refused  by  those  having  authority  in  the  matter.7 

i  Sherburne    v.   Horn,   45    Mich.  People  v.  Billiard,  29  111.  413 ;  State 

160;  State  v.  Rodman,  43  Mo.  254.  v.  Dusman,  39  N.  J.  L.  677. 

2Vicksburg    (Mayor)     v.     Rain-  fi State    v.   Camden   Co.    (Chosen 

water,   47  Miss.   547;    Peabody  v.  Freeholders).  35  N.  J.  L.  217;  State 

Boston  (School    Com.),   115    Mass.  v.  Warrick  Co.  (Com'rs),  124  Ind. 

383 ;  King  v.  London  (Mayor),  3  B.  554 ;  State  v.  Saxon,  25  Fla.   792 ; 

&  Ad.  255.  Driscoll  v.  Jones  (S  Dak.,  Mar.  1, 

3  King  and  Knapton,  2  Keb.  445 ;  1890),  44  N.  W.  Rep.  726.     Contra, 
King  v.  Bedford  Level,  6  East,  356 ;  Pucket  v.  Bean,  11  Heisk.  600. 
King  v.  Bedford,  1  East,  79 ;  Rex  v.  <  Felts    v.    Memphis    (Mayor),    2 
Ward,  2  Stra.  893.  Head,  650 ;  Burr  v.  Norton,  25  Conn. 

4  King  v.  Serle,  8  Mod.  332.  103 ;  Chumasero  v.  Potts,  2  Mont. 

5  Warner  v.   Myers,  4  Oreg.  72;  242. 


§143.]  MANDAMUS — EIGHT   TO   PUBLIC    OFFICE.  177 

So  a  person,  who  has  been  elected  to  a  membership  in  a 
board,  may  compel  the  other  members  to  recognize  him  as 
a  member  thereof,  and  to  admit  him  to  their  deliberations.1 
If,  however,  there  is  already  a  de  facto  incumbent  of  the 
office,  in  those  states  where  the  courts  refuse  to  try  the  title 
to  an  office  by  this  writ,  it  cannot  be  resorted  to  in  order 
to  obtain  the  office  itself.2  However  it  is  a  common  prac- 
tice to  grant  the  writ  to  the  party  holding  the  commission 
or  certificate  therefor,  to  enable  him  to  obtain  the  books, 
papers  or  insignia  of  office,  or  the  possession  of  property  or 
buildings  properly  in  the  custody  of  such  officer,  or  to 
enable  him  to  enforce  other  rights  growing  out  of  his  offi- 
cial position.3 

§  143.  Mandamus  to  put  into  office  not  granted  when 
there  is  a  de  facto  incumbent.—  When  there  is  a  party 
already  in  possession  of  the  office,  holding  it  under  color  of 
right,  the  courts  will  refuse  to  issue  the  writ,  and  will  re- 
quire the  party  to  resort  to  a  quo  warranto  first  in  order 
to  determine  the  right  of  the  incumbent.4  They  refuse  to 
allow  this  writ  to  be  used  to  try  the  title  to  an  office.  The 
reasons  for  this  ruling  are,  because  mandamus  never  lies 

i  Q.  v.  Leeds  (Mayor),  11  A.  &  E.  French  v.  Cowan,  79  Me.  426 ;  State 

512 ;  Lawrence  v.  Ingersol,  88  Tenn.  v.  Gasconade  Co.  Court,  25  Mo.  Ap. 

52 ;  'smith  v.  Eaton  Co.  (Sup'rs),  56  446 ;  State  v.  Taaffe,  25  Mo.  Ap.  567 ; 

Mich.   217 ;  Douglas  v.   Essex  Co.  People  v.  New  York,  3  John.  Cas. 

<Chosen  Freeholders),  38  N.  J.  L.  79 ;  Bonner  v.  State,  7  Ga.  473 ;  Q. 

214  v.  Derby  (Councillors  of  Borough), 

2  See  §143.  7  A.  &  E.  419;  Modes  v.  Watson, 

3  See  §§  152,  153,  154,  155.  60  Mich.  415 ;  Harris,  Ex  parte,  52 
4Lusk,  Ex  parte,  82  Ala.    519;  Ala.   87;  3    Stephens'    Nisi    Prius, 

State    v.  Steen,    43    N.   J.   L.  542;  2295;  Denver  v.   Hobart,    10  Nev. 

Mannix  v.  State,  115  Ind.  245 ;  State  28 ;  Meredith  v.  Supervisors,  50  Cal. 

v.  Palmer,   10  Neb.   203;  Biggs  v.  433;  King  v.  Colchester  (Mayor),  2 

McBride,   17  Oreg.  640;  People  v.  T.  R.  260;  People  v.  Mattesou,  17 

Detroit  (Com.   Council),    18    Mich.  111.  167  ;  Swartz  v.  Large  (Kan.,  Nov. 

338;  State  v.  Thompson,  36  Mo.  70;  7,  1891),  27  Pac.  Rep.  992;  Frey  v. 

State  v.  Sherwood,  15  Minn.  221;  Michie,   68  Mich.  323;    Runion   v. 

People  v.  Olds,  3  Cal.  167 ;  State  v.  Latimer,   6  S.  C.  126 ;  R.  v.  Win- 

Dusman,  39  N.  J.  L.  677 ;  State  v.  Chester,  7  A.  &  E.  215 ;  R.  v.  At- 

Draper,  48  Mo.  213 ;  State  v.  Cam-  wood,  4  B.  &  Ad.  481 ;  R.  v.  Chester, 

den  (Com.  Council),  42  N.  J.  L.  335 ;  1  M.  &  S.  101. 
12 


178  MANDAMUS  —  EIGHT   TO    PUBLIC    OFFICE.  [§   143. 

when  there  is  another  adequate  remedy,  which  quo  war- 
ranto is  considered  to  be,  and  because  justice  requires  that 
the  incumbent  should  be  a  party  to  the  proceeding  in  order 
to  protect  his  own  rights,  whereas  the  writ  is  often  brought 
against  other  parties,  ignoring  the  real  party  in  interest.1 
This  ruling  is  only  one  of  discretion,  and  will  not  be  allowed 
to  prevent  the  issue  of  a  mandamus  in  such  cases  when  the 
law  has  provided  no  other  remedy.2  In  England  an  office 
is  full  de  facto  when  the  person  elected  has  been  admitted 
to  it,  whether  the  election  was  or  was  not  of  such  a  char- 
acter that  it  could  be  supported  at  law,  but  such  illegality 
mast  be  consistent  with  honesty,  of  purpose.  Elections 
based  upon  mistakes  of  fact  or  misconceptions  of  law  may 
import  a  color  of  right,  wrhich  will  bar  the  allowance  of  a 
mandamus,  but  palpable  disregard  of  law  renders  the  action 
by  which  the  office  is  seized  merely  colorable,  and  in  a  clear 
case  will  be  brushed  aside  as  affording  no  obstruction  to 
the  exercise  of  a  plain  legal  duty.  In  such  cases  a  party 
ousted  wrongfully  may  have  a  mandamus?  If  the  office  is 
not  filled,  or  there  is  no  adverse  claimant  holding  under 
color  of  right,  there  is  no  reason  why  the  writ  should  not 
issue.4  So  the  writ  will  issue  if  the  incumbents  are  only 
holding  over  till  their  successors  are  elected  and  qualified,5 
or  if  they  are  holding  the  offices  by  virtue  of  an  election  or 
an  appointment  which  is  merely  colorable  and  void,6  or  if 
the  relator's  title  has  been  finally  established  by  a  compe- 
tent tribunal.7  There  must  be  a  real  and  substantial  dis- 
pute as  to  the  title  to  the  office  to  prevent  the  issuance  of 
this  writ.8     Since  the  courts  decline  to  try  the  title  to  an 

i  State  v.  Dusman,  39  N.  J.  L.  677.    Vt.  498 ;  Clarke  v.  Trenton,  49  N.  J. 

2  People  v.  Olds,  3  Cal.  167 ;  State    L.  349. 

v.  Sherwood,  15  Minn.  221.  6  State  v.  Dunn,  1  Minor's  Ala.  R. 

3  Leeds  v.  Atlantic  City,  52  N.  J.     46 ;  Com.  v.  Co.  Com'rs,  5  Rawle, 
L.  332.  45 ;    Stone    v.   Small,  54  Vt.  498 ; 

*  State  v.  Miller,  45  N.  J.  L.  251 ;  Leeds  v.  Atlantic  City,  52  N.  J.  L 

State  v.  McCullough,  3  Nev.  202;  332. 

Mannix  v.  State,  115  Ind.  245.  ?  Mannix  v.  State,  115  Ind.  245. 

a  State  v.  Hudson  Co.  (Ch.  Frhrs.),  &  People  v.  Stephens,  2  Abb.  Pr. 

35  N.  J.  L.  269 ;  Stone  v.  Small,  54  (N.  S.)  34a 


§§  144,  145.]       MANDAMUS  —  EIGHT   TO   PUBLIC    OFFICE.  179 

office  by  this  writ,  they  will  not  use  the  writ  to  compel  an 
officer  to  discharge  the  duties  of  his  office  when  he  claims 
that  the  law  has  abolished  his  office.1  When  a  person 
elected  to  a  membership  in  a  board  seeks  to  compel  the 
other  members  to  recognize  him  as  a  member  and  to  admit 
him  to  their  deliberations,  if  such  board  has  recognized 
and  accepted  another  party  as  a  member,  a  mandamus  will 
not  issue  to  compel  the  acceptance  of  the  relator  as  a  mem- 
ber, since  it  would  involve  a  trial  of  the  title  to  the  office.2 
A  party,  applying  to  be  admitted  to  an  office,  should  do 
everything  necessary  to  make  his  title  complete,  because  a 
mandamus  will  not  lie  to  induct  into  office  on  an  inchoate 
title.3  "When  a  mandamus  is  issued  to  swear  one  into  office 
or  put  him  in  possession  thereof,  it  confers  no  right,  but  con- 
firms his  title,  if  he  has  one.4 

§  144.  Whether  mandamus  lies  to  put  one  into  an  of- 
fice pending  a  contest. —  When  on  a  contest  for  an  office 
a  judgment  has  been  rendered  in  favor  of  the  relator,  a 
m andamus  will  not  lie  to  put  him  in  possession  of  the  office 
pending  an  appeal,  if  such  appeal  suspends  the  judgment ; 5 
nor  will  it  lie,  though  the  relator  has  the  regular  certificate, 
if  the  judgment  was  rendered  in  favor  of  the  respondent, 
when  the  judgment  is  not  suspended  by  the  appeal,  since 
the  judgment,  while  it  remains  unreversed,  gives  the  re- 
spondent the  prima  facie  title.8 

§  145.  Mandamus  to  compel  an  officer  elect  to  assume 
the  duties  of  the  office. —  A  party  who  has  been  elected  to 
an  office  owes  a  duty  to  the  public  to  qualify  himself  there- 
for and  to  enter  upon  the  discharge  of  its  duties.  Such 
duty  being  incumbent  on  him  by  law,  he  may  be  compelled 
by  the  writ  of  mandamus  to  assume  the  office  and  to  take 
upon  himself  the  duties  thereof.7    Though  he  may  be  sub- 

i  State  v.  Steen,  43  N.  J.  L.  542.  SHannon    v.   Halifax    (Com'rs), 

2  Kelly  v.  Edwards,  69  Cal.  460.  89  N.  C.  12a 

3  Thomason  v.  Justices,  3  Humph.  6  Allen  v.  Robinson,  17  Minn.  113. 
233.  7  King  v.  Leyland,  3  M.  &  S.  184 ; 

*  R.  v.  Clarke,  2  East,  83 ;  Brower    King  v.  Bower,  1  B.  &  C.  585. 
v.  O'Brien,  2  Ind.  423. 


180  MANDAMUS  —  EIGHT   TO   PUBLIC    OFFICE.  [§  1±6. 

ject  to  an  indictment  or  fine  for  failure  so  to  do,1  still  the 
writ  of  mandamus  will  be  granted,  because  neither  the  in- 
dictment nor  the  fine  is  an  adequate  remedy  in  the  prem- 
ises, since  it  does  not  fill  the  office  and  prevent  a  failure  of 
the  discharge  of  public  duties.  The  American  courts  do 
not  seem  as  yet  to  have  been  called  on  to  enforce  this  doc- 
trine of  the  common  law. 

§  146.  Mandamus  is  allowed  in  some  states  to  try  the 
title  to  an  office. —  The  rule  that  a  mandamus  will  not  lie 
to  try  the  title  to  an  office,  and  that  an  incumbent  of  an 
office  under  color  of  right  will  not  be  disturbed  thereby, 
has  not  met  with  universal  acceptance.  A  few  of  the  courts 
hold  that  in  such  cases  a  mandamus  is  the  proper  remedy 
to  determine  the  title  to  an  office,  and  that,  though  a  quo 
warranto  may  remove  the  incumbent,  it  will  not  seat  the 
relator,  and  that  a  mandamus  may  still  be  necessary :  so 
the)r  grant  a  mandamus  in  the  first  instance.2  There  seems 
to  be  no  reason  why  this  view  of  the  law  should  not  be  of 
universal  acceptance,  unless  a  different  mode  of  trial  is 
adopted  in  mandamus  than  in  other  proceedings,  since  all 
the  evidence  in  the  case  may  be  adduced  in  a  mandarn  us 
proceeding.  The  incumbent  should  be  made  a  party  to 
the  proceedings,3  or  such  an  order  may  be  made  in  the 
case,  so  that  he  may  protect  his  rights  in  the  premises. 
It  has  been  well  stated  that  the  rule,  that  the  title  to  an  of- 
fice will  not  be  tried  in  a  mandamus  proceeding,  should  be 
confined  to  cases  where  the  person  claiming  the  office  ad- 
versely to  the  relator  is  not  made  a  party  to  the  proceed- 
ings.4 

iKiug  v.    Bedford,   1    East,  79;  Mass.    204;    Conlin   v.  Aldrich,  98 

King  v.  Bovver,  1  B.  &  C.  585.  Mass.    557 ;    Strong,   Petitioner,   20 

2  Lewis  v.  Whittle,  77  Va.  415 ;  Pick.  484.  The  code  of  North  Car- 
Jameson  v.  Hudson,  82  Va.  279 ;  olina  provides  for  such  a  suit.  State 
Lindsay  v.  Luckett,  20  Tex.  516 ;  v.  Somers,  9G  N.  C.  467. 
Bantonv.  "Wilson,  4  Tex.  400;  Dew  3  Dew  v.  Sweet  Springs  (Judges), 
v.  Sweet  Springs  (Judges),  3  Hen.  3  Hen.  &  M.  1 ;  post,  §§  242,  243. 
&  M.  1 ;  Harwood  v.  Marshall,  9  4  Harwood  v.  Marshall,  9  Md.  83. 
Md.  83;    Putnam  v.  Langley,  133 


§147.]  MANDAMUS  —  RIGHT    TO    TUBLIC    OFFICE.  1S1 

§  147.  When  a  public  officer  may  be  removed  from  of- 
fice.—  Public  officers  may  be  removed  from  their  offices  for 
the  causes  and  in  the  mode  designated  by  law.  The  former 
opinion  was,  that  no  corporation  had  the  power  of  amotion 
of  its  officers  unless  such  power  was  given  by  charter  or 
prescription.1  The  modern  opinion  is  that  such  power  is 
incident  to  every  corporation.2  Such  power  resides  only 
in  the  corporation,  and  not  in  a  part  of  it,  unless  so  given 
by  charter  or  prescription.3  Where  his  offense  is  merely 
against  his  duty  as  a  corporator,  the  corporation  alone  can 
try  him.4  The  offenses  for  which  a  corporate  officer  may 
be  removed  are  of  three  classes :  1.  Such  as  relate  to  his 
corporate  or  official  character,  amounting  to  breaches  of 
the  conditions  tacitly  or  expressly  annexed  to  his  office. 
2.  Such  as  are  infamous,  rendering  him  unfit  to  enjoy  any 
public  office.  3.  Such  as  are  of  a  mixed  character,  being 
not  only  contrary  to  corporate  or  official  duty,  but  indict- 
able at  common  law.5  The  courts  will  pass  upon  the  legal- 
ity of  the  removal  of  a  public  officer  from  his  office,8  and 
though  they  will  not  control  the  discretion  allowed  by  law 
to  those  officers  who  have  removed  such  officer,  yet  they 
will  decide  wherein  discretion  is  allowed.  If  a  removal  is 
allowed  for  due  cause,  the  courts  will  decide  what  is  due 
cause.7  When  an  officer  is  removed  after  a  proper  investi- 
gation by  a  party  or  tribunal  having  the  legal  authority, 
the  courts  will  not  by  mandamus  interfere  with  such  ac- 
tion.8 Before  an  officer  is  removed  from  office  he  must 
have  a  chance  to  be  heard.9  The  record  of  the  proceedings 
by  which  an  officer  is  removed  from  his  office  should  incor- 

i  R.  v.  Doncaster  (Mayor),  2  L.  5  Coin.  v.  Guardians  of  Poor,  6  S. 
Raym.  1564  &  R  469 ;  State  v.  Teasdale,  21  Fla. 

2  Rex  v.  Richardson,  1  Burr.  517 ;     652. 

Buller'a  Nisi  Prius,  201 ;  R.  v.  Don-  6  Q.  v.  Pomfret  (Mayor),  10  Mod. 

caster  (Mayor),   Say.   37;    Com    v.  107. 

Guardians  of  Poor,  6  S.  &  R  469.  '  State  v.  Watertown  (Com.  Coun- 

3  R  v.  Doncaster  (Mayor),  Say.  37.  cil),  9  Wis.  254. 

*  Rex  t.  Richardson,  1  Burr.  517 ;        8  State  v.  Cleveland  (Fire  Com'rs), 
Com.  v.  Guardians  of  Poor,  6  S.  &    26  Ohio  St.  24. 
R.  469.  9  Geter  v.  Conrrs,  1  Bay,  354 


182  MA.NDAMUS  —  EIGHT   TO    PUBLIC    OFFICE.  [§  14S. 

porate  the  charges  made  against  him  and  the  substance  of 
the  evidence  adduced  on  his  trial.1  Where  the  law  requires 
the  cause  for  the  removal  of  the  county  commissioners  of 
the  clerk  of  their  court  to  be  stated  on  their  record,  a  fail- 
ure to  make  such  entry  on  the  record  will  warrant  a  writ 
of  mandamus  to  restore  such  removed  officer.2 

§  148.  Mandamus  lies  to  restore  an  officer  wrongfully 
removed  from  office. —  "When  an  officer  has  been  wrong- 
fully removed  from  his  office,  he  will  be  restored  thereto  by 
the  writ  of  mandamus?  The  same  rule  applies  in  case  of  a 
wrongful  suspension  from  office,4  since  such  suspension  is 
a  temporary  removal,  and  otherwise,  under  the  pretense  of 
repeated  removals,  an  officer  might  be  entirely  excluded 
from  the  advantages  of  his  situation.5  So  when  a  board 
wrongfully  removes  a  member  thereof,  and  declines  to  rec- 
ognize him  any  longer  as  a  part  thereof,  a  mandamus  will 
issue  to  compel  the  other  members  to  accept  the  relator  as 
a  member,  and  to  allow  him  to  participate  in  their  delibera- 
tions and  actions.0  Where,  however,  the  incumbent  of  an 
office  was  removed,  and  another  appointed  to  his  office  by 
a  board  having  the  power  to  fill  vacancies  in  such  offices,7 
and  where  a  third  party  was  appointed  to  occupy  the  office 
by  a  board  having  the  power  of  appointment  upon  the  ter- 

1  Geter  v.  Com'rs,  1  Bay,  354 ;  Sin-  Singleton  v.  Commissioners,  2  Bay, 
gleton  v.  Com'rs,  2  Bay,  105.  105 ;    Felts    v.   Memphis    (City),    2 

2  Street  v.  Gallatin  Co.  (Com'rs),  Head,  050 ;  Dew  v.  Sweet  Springs 
Breese,  25.  (Judges),  3  Hen.  &  M.  1 ;  Burr  v. 

3  Ex  parte  Lusk,  82  Ala.  519;  Norton,  25  Conn.  103;  Milliken  v. 
Metsker  v.  Neally,  41  Kan.  122 ;  City  Council,  54  Tex.  388 ;  State  v. 
Ex  parte  Wiley,  54  Ala.  226 ;  Ban-  Watertown  (Common  Council),  9 
ton  v.  Wilson,  4  Tex.  400 ;  Johnson  Wis.  254 ;  E.  v.  Oxford  (Mayor),  2 
v.  Mann,  77  Va.  265 ;  King  v.  Don-  Salk.  428. 

caster  (Mayor),  2  L  Raym.  1564;  4Ex    parte    Lusk,   82    Ala.  519; 

State  v.  Teasdale,  21  Fla.  652 ;  King  Metsker    v.   Neally,  41   Kan.    122 ; 

v.   Canterbury  (City),  1   Lev.  119;  Ex  parte  Diggs,  52   Ala.  381;  Ex 

Madison  (City)  v.  Korbly,  32  Ind.  parte  Wiley,  54  Ala.  226. 

74 ;  Rex  v.  Liverpool  (Town),  Burr.  »  Rex  v.  London,  2  T.  R.  177. 

723 ;  Nelson    v.   Edwards,   55  Tex.  6  Gaal  v.  Townsend,  77  Tex.  464. 

889 ;  Doyle  v.  Raleigh,  89  N.  C.  133  ;  ?  Ellison  v.  Raleigh,  89  N.  C.  125. 
Geter  v.  Commissioners,  1  Bay,  354 ; 


§§149,  150.]      MANDAMUS  —  EIGHT  TO   PUBLIC   OFFICE.  183 

mination  of  the  term  of  the  incumbent,1  the  writ  of  man- 
damus to  restore  the  excluded  officer  was  refused,  because 
quo  warranto  was  considered  to  be  an  appropriate  remedy. 
This  ruling  is  contrary  to  the  decisions  cited,  where  the 
same  question  was  directly  passed  on,  or  the  same  state  of 
facts  seems  to  have  existed  according  to  the  inferences  to  be 
drawn  from  the  opinions.2 

§  149.  Mandamus  will  not  lie  to  seat  an  officer  who 
may  be  removed  at  once. —  The  courts  in  the  exercise  of 
their  discretion  will  not  issue  this  writ  unless  substantial 
results  will  be  accomplished  thereby,  and  will  not  issue  it  to 
restore  a  person  to  an  office  held  at  the  pleasure  of  the 
respondents,  since  they  can  at  once  remove  such  restored 
officer; 3  nor  where  the  officer  was  irregularly  removed,  but 
there  exist  good  grounds  for  a  regular  removal  as  soon  as 
he  is  restored ; 4  nor  where  he  could  not  show  a  legal  and 
constitutional  right  to  exercise  the  office,  as  when  he  had 
taken  another  and  incompatible  office.5 

§  150.  Mandamus  when  officer  not  removed  but  another 
party  intrudes  himself. —  When  there  was  no  real  re- 
moval, but  another  party  under  color  of  right  intruded  him- 
self and  interfered  with  the  discharge  of  its  duties,  a  man- 
damus was  refused  to  restore  the  earlier  incumbent  to  his 
office,  but  was  granted  to  restrain  the  intruder  from  inter- 
fering with  the  discharge  of  the  duties  of  the  office.6    In  a 

1  St.  Louis  County  Court  v.  Sparks,     be  declared  before  the  court  would 
10  Mo.  117.  notice  it.    Kex  v.  Oxford  (Mayor), 

2  Ex  parte  Wiley,  54  Ala.   226 ;    2  Salk.  428. 

State  v.  Teasdale,  21  Fla.  652 ;  Mad-  4  King  v.  London  (Mayor),  2  Term 

ison  (City)  v.  Korbry,  32  Ind.  74;  R.  177;  King  v.  Bristol  1  D.  &  R. 

Geter  v.  Commissioners,  1  Bay,  354 ;  389 ;    Rex    v.     Axbridge    (Mayor), 

Singleton  v.  Commissioners,  2  Bay,  Cowp.   523 ;  R  v.   Griffiths,  5  B.  & 

105 ;  Ex  parte  Diggs,  52  Ala.  381 ;  Aid.  731 ;  Wiley,  Ex  parte,  54  Ala. 

State  v.  Water  town  (Common  Coun-  226;  State  v.  Board  of  Health,  49 

cil).  9  Wis.  254.  N.  J.  L.  349. 

3  Rex  v.  Coventry  (Mayor),  2  Salk.  8  Spencer  Co.  (Just)  v.  Harcourt, 
430.    An  officer  was  restored  be-  4  B.  Mon.  499. 

cause  the  corporation  had  not  de-       6  People  v.  Scrugham,  20  Barb. 
clared  its  will  to  remove  him,  the    302. 
court  holding  that  such  will  must 


184  MANDAMUS EIGHT   TO   PUBLIC    OFFICE.       [_§§  151,  152. 

similar  case  it  was  held  that  the  office  was  not  full  de  facto 
against  the  relator,  unless  by  his  conduct  he  elected  to  con- 
sider himself  ousted.  In  contemplation  of  law  his  title  to 
the  office  dejure  draws  to  it  possession  de  jure,  as  in  cases 
where  simultaneous  acts  of  occupancy  are  exercised  by  con- 
testants over  a  legal  title.  In  such  cases  there  is  nothing 
to  be  tried  by  quo  warranto,  and  a  mandamus  is  the  proper 
remedy.1 

§  151.  Mandamus  when  removal  from  office  is  discre- 
tionary.— Since  this  writ  never  interferes  with  duties  which 
are  discretionary,  it  will  not  lie  to  compel  the  removal  of 
an  officer  from  office  when  such  removal  is  discretionary.2 
§  152.  Party  having  the  prima  facie  title  to  an  office 
can  enforce  his  rights  as  such  officer  by  the  writ  of  man- 
damus.— In  many  cases  the  writ  of  mandamus  has  been 
applied  for  to  compel  the  performance  of  duties,  wherein  it 
was  necessary  to  take  into  consideration  the  title  to  office, 
though  such  title  was  then  in  dispute,  and  there  were  two 
parties  each  of  whom  claimed  the  office,  as  to  give  a  cer- 
tificate of  election,  to  approve  an  officer's  bond,  to  issue  a 
warrant  for  an  officer's  salary,  or  to  order  the  delivery  of 
the  books  and  papers  belonging  to  an  office.     In  such  cases 
the  courts  recognize  and  enforce  the  claims  of  the  party 
who  has  the  prima  facie  title  to  the  office.3    The  writ  has 
been  issued :  to  audit  the  salary  of  a  member  of  the  legis- 
lature who  had  a  certificate  of  election  from  the  proper  re- 
turning board ; 4  to  audit  the  salary  of  a  judge  who  had  the 
prior  commission  and  was  the  de  facto  judge;5  to  pass  on 
the  bond  of  a  sheriff  who  had  the  commission,  though  the 
county  court  claimed  there  was  no  election  of  a  sheriff ; 6 
to  pass  on  the  bond  as  collector  of  the  county  of  one  de- 
clared by  the  county  canvassers  to  have  been  elected,  though 

i  Leeds  v.  Atlantic  City,  52  N.  J.  4  State  v.  Kenney,  9  Mont  389. 

L.  332.  5  State  v.  Draper,  48  Mo.  213. 

2 King  v.  West  Looe  (Mayor),  5  ©State  v.  Howard  Co.  Court,  41 

D.  &  R.  414.  Mo.  247. 

3  State  v.  John,  81  Mo.  13. 


§  152.]  MANDAMUS  —  RIGHT   TO   PUBLIC    OFFICE.  185 

the  board  of  chosen  freeholders  asserted  he  was  not  elected  ;* 
to  approve  the  bond   of  the  clerk  of  the  court,  who  had 
been  commissioned  by  the  governor;2  to  draw  a  warrant 
for  his  salary  as  judge  in  favor  of  one  who  had  been  com- 
missioned by  the  governor; 3  to  deliver  the  books  of  an  of- 
fice to  one  who  was  duly  elected,  and  had  the  certificate  of 
his  election,  and  had  qualified;4  to  deliver  the  books  be- 
longing to  an  office  to  one  who  had  the  certificate  of  his 
election  thereto;5  and  to  deliver  the  office-room  and  furni- 
ture thereof  to  one  who  had  been  appointed  to  the  office 
upon  the  removal  of  the  incumbent,  though  the  incumbent 
had  appealed  from  such  order,  when  such  appeal  was  not  a 
supersedeas.6     A  superintendent  of  schools  who  had  his  cer- 
tificate of  election,  had  filed  his  official  bond  and  was  filling 
the  office,  asked  for  a  mandamus  to  compel  the  county 
commissioners  to  approve  another  bond,  which  he  was  re- 
quired to  give.     The  commissioners  returned  that  he  was 
elected  to  his  office  by  a  corrupt  agreement,  and  that  his 
election  was  void.     The  court  adjudged  the  return  to  be 
bad,  because  the  certificate  of  election  barred  all  inquiry  as 
to  his  right  to  hold  the  office  except  in  a  direct  proceeding 
to  contest  his  right.7    A  clerk  of  a  county  was  considered 
to  be  subject  to  proceedings  for  contempt  in  not  obeying 
a  peremptory  writ  of  mandamus  to  recognize  the  relators 
as  the  county  commissioners,  for  the  court  must  have  de- 
cided in  the  mandamus  proceeding  that  they  were  the  de 
facto  officers,  and  the  writ  merely  ordered  him  to  do  his 
duty  and  not  to  attempt   to  exercise  judicial  functions.3 
The  charter  of  a  village  required  every  person  elected  to 
an  office  therein  to  take,  and  file  with  the  village  clerk,  an 
oath  of  office.     A  village  ordinance  authorized  the   clerk 

1  State   v.   Camden  Co.   (Chosen    State  v.  Dodson,  21  Neb.  218;  Dris- 
Freeholders),  35  N.  J.  L.  217.  coll  v.  Jones  (S.  Dak.,  Mar.  1, 1890), 

2  Beck  v.    Jackson,  43  Mo.  117;    44  N.  W.  Rep.  726. 

State  v.  Wear,  37  Mo.  Ap.  325.  6  state  v.  Meeker,  19  Neb.  444. 

3  State  v.  Clark.  52  Mo.  508.  7  state  v.  Warrick  Co.  (Com'rs), 

4  State  v.  Sherwood,  15  Minn.  221 ;     124  Ind.  554. 

State  v.  Saxon,  25  Fla.  792.  s  Delgado,  In  re,  140  U.  S.  586. 

5  State  v.  Jaynes,   19  Neb.   161; 


186  MANDAMUS  —  EIGHT  TO  PUBLIC   OFFICE.  [§  153. 

to  administer  the  oath.  The  return  of  the  inspectors  of 
the  election  showed  that  O'Brien  received  sixty-six  votes, 
Morris  A.  Young  sixty-six  votes,  Morris  Young  one  vote 
and  M.  A.  Young  one  vote.  The  court  decided  that  the 
return  showed  presumptively  Young's  election,  and  that  he 
was  entitled  to  be  sworn  in  that  he  might  assert  his  legal 
rights ;  that  the  clerk  was  bound  to  administer  the  oath  to 
the  party  having  the  prima facie  title,  though  he  might  him- 
self think  the  election  was  not  legal.  The  court  suggested 
that  perhaps  the  clerk  might  refuse  if  each  person  was 
known  to  be  ineligible  to  the  office.  The  writ  was  granted 
in  Young's  favor.1 

§  153.  Subject  continued. —  The  writ  has  been  refused, 
because  another  had  been  commissioned,  and  therefore  had 
the  prima  facie  title :  to  approve  the  bond  of  the  relator 
as  sheriff ; 2  to  audit  a  judge's  salary ; 3  and  to  audit  the 
salary  of  the  commissioner  of  the  permanent  seat  of  gov- 
ernment.4 When  under  the  circumstances  of  the  case  the 
alternative  mandamus  will  involve  the  title  to  an  office, 
those  courts  which  refuse  to  try  a  title  to  an  office  by  the 
writ  of  mandamus  will  refuse  to  issue  the  writ.  For  this 
reason  the  writ  has  been  refused :  to  compel  a  county  treas- 
urer to  deliver  the  books  of  his  office  to  one  who  had  been 
appointed  his  successor,  on  the  allegation  that  his  office  was 
vacated  by  virtue  of  his  election  as  a  member  of  the  legis- 
lature and  by  his  entry  upon  the  duties  thereof ; 5  and  to 
compel  a  notary  to  deliver  up  the  books  of  his  office,  which, 
it  was  claimed,  was  vacated  by  the  failure  of  the  legisla- 
ture to  pass  certain  laws.6  For  the  same  reason  such  courts 
have  refused  to  allow  the  respondent  to  raise  the  issue  of 
the  eligibility  of  the  relator  to  the  office  concerning  which, 
as  incumbent  thereof,  he  is  seeking  to  enforce  his  rights.7 

•People  v.  Straight,   128  N.  Y.  *  Winston  v.  Moseley,  35  Mo.  146. 

545.  ft  State  v.  Williams,  25  Minn.  340. 

2  Boone  Co.  (Com'rs)  v.  State,  61  6  State  v.  Pitot,  21  La.  An.  336. 
Ind.379.  "Turner  v.  Melony,  13  Cal.  621; 

3  State  v.   Moseley,  34  Mo.  375;  State  v.  Sherwood,  15  Minn.  221; 
State  v.  Thompson,  36  Mo.  70.  State  v.  Gamble,  13  Fla,  9.     Con- 


§  154.]  MANDAMUS  —  EIGHT   TO    PUBLIC    OFFICE.  1S7 

The  fact  that  the  respondent  has  paid  the  salary  of  an  of- 
fice to  another,  who  was  not  the  de  facto  officer,  is  no  rea- 
son why  he  should  not  be  compelled  by  a  mandamus  to 
issue  a  warrant  for  his  salary  in  favor  of  the  de  jure  offi- 
cer ; l  but  the  rule  is  different  when  such  payment  is  made 
to  a  de  facto  officer,  provided,  and  not  otherwise,  he  came 
into  office  under  color  of  title.2  When,  however,  the  comp- 
troller believes  that  the  party  is  not  an  officer  de  jure,  he 
may,  as  a  good  officer,  refuse  to  draw  a  warrant  for  his 
salary,  and  in  deciding  a  mandamus  for  such  salary  the 
court  may  determine  the  legality  of  his  title,  if  there  is  no 
third  party  not  before  the  court  whose  rights  are  involved  in 
such  determination.3  So  when  an  officer  has  established 
his  title  to  an  office  from  a  certain  date  by  quo  warranto, 
he  is  entitled  to  his  salary  from  that  date,  although  he  did 
not  acquire  possession  thereof  till  a  later  date.4  A  certifi- 
cate of  election  was  refused  to  a  party  who  was  contesting 
the  election  of  another,  to  whom  the  certificate  was  given, 
on  the  ground  that  he  had  by  such  proceeding  an  adequate 
remedy.5  When  the  approval  of  the  bond  of  an  officer-elect 
is  considered  to  be  an  act  involving  discretion,  the  writ  will 
be  refused ;  but  when  it  is  not  so  considered,  the  writ  will 
be  granted  to  compel  such  approval  in  favor  of  every  officer 
elect.6 

§  154.  Mandamus  for  books  and  paraphernalia  of  office 
by  party  with  the  prima  facie  title. —  As  indicated  in  a 
prior  section,7  the  officer  entitled  to  the  possession  of  the 
books,  papers,  records  and  insignia  of  office,  and  to  the 
rooms  and  buildings  properly  under  his  control,  may  obtain 
such  possession  by  the  writ  of  mandamus,  when  they  are 
improperly  retained  from  him.s     One   who   has  been   ap- 

tra:  State  v.  Williams,  99  Mo.  291 ;  4  Turner  v.  Melony,  13  Cal.  621. 

State  v.  Newman,  91  Mo.  445 ;  State  3  State  v.  Cover,  50  111.  100. 

v.  Somers,  96  N.  C.  467.  6  See  §  118. 

1  Williams  v.  Clayton  (Utah,  Mar.  '  §  152. 

8,  1889),  21  Pac.  Rep.  398.  8  Nelson  v.  Edwards,  55  Tex.  389 ; 

2  People  v.  Brennan,  45  Barb.  457.     Walter  v.  Belding,  24  Vt  658  ;  Ban- 

3  State  v.  Gamble,  13  Fla.  9.  ton  v.  Wilson,  4  Tex.  400 ;  State  v. 


188  MANDAMUS  —  EIGHT   TO   PUBLIC    OFFICE.  [§  155. 

pointed  or  elected  to  an  office  may  by  this  writ  obtain  all 
the  muniments  of  his  office  from  his  predecessor.1  An  ac- 
tion of  replevin  is  not  considered  to  be  a  sufficient  remedy, 
since,  in  case  the  books  are  not  found,  the  judgment  can 
only  be  for  their  value,  while  it  might  be  impossible  to  show 
their  value.2  It  might  be  added,  that  it  might  be  impos- 
sible to  adequately  protect  the  public  interests,  unless  the 
books  were  produced.  Though  there  may  be  a  dispute  as 
to  the  title  to  the  office,  even  those  courts  which  refuse  to 
try  the  title  to  an  office  by  the  writ  of  mandamus  will  issue 
the  writ  in  such  cases  in  favor  of  the  party  who  shows 
the  prima  facie  title.3  Such  action  will  in  no  way  prejudice 
or  affect  the  contest  for  the  office.4  The  party  who  has  re- 
ceived the  certificate  of  election  or  the  commission  of  office, 
and  has  qualified,  is  generally  considered  tohavethe^?Hw?« 
facie  title.5  The  relator  in  such  case  must  show  that  he  is 
an  officer  de  jure?  Though  the  court  may  refuse  to  try  the 
title  to  an  office  by  the  writ  of  mandamus,  yet  it  will  not 
regard  a  groundless  assumption  of  the  respondent's  election 
to  an  office,  and  a  pretended  exercise  of  the  office  de  facto, 
but  will  compel  the  delivery  of  the  seals,  books,  papers  and 
instruments  of  the  office  to  the  party  properly  elected.7 

§  155.  Subject  continued. —  In  one  case  where  a  return 
of  official  books  was  sought,  the  court  stated  that  when  a 

Johnson,  29  La.  An.  399 ;   Keokuk  *  People    v.    Head,  25    111.   325 ; 

(City)   v.   Merriam,  44  Iowa,  432 ;  State  v.  Saxon,  25  Fla.  792. 

Territory  v.  Shearer.  2  Dak.  332.  5  People    v.    Head,   25  111.    325; 

J  Stone  v.  Small,  59  Vt.  498 ;  Cun-  Crowell  v.  Lambert,  10  Minn.  369 ; 

ningham    v.   O'Connor,  80    Tenn.  Warner  v.  Myers,  4  Oreg.  72 ;  State 

397 ;  McGee  v.  State,  103  Ind.  444 ;  v.  Sherwood,  15  Minn.  221 ;   State 

Huffman  v.   Mills,  39  Kans.  577 ;  v.   Saxon,   25    Fla.    792 ;    State  v. 

Frisbie    v.     Fogg,    78     Ind.    269;  Jaynes,    19  Neb.  161;  Huffman  v. 

Warner    v.    Myers,    4     Oreg.    72 ;  Mills,  39  Kans.  577 ;  State  v.  Dod- 

Keokuk  v.  Merriam,  44  Iowa,  432;  son,  21  Neb.  218;  Driscoll  v.  Jones 

People  v.  Hilliard.  29  111.  413 ;  State  (S.  Dak.,  Mar.    1,  1890),  44  N.  W. 

v.  Kirman,  17  Nev.  380.  Rep.  726. 

2  Keokuk  (City)  v.  Merriam,   44  6  People  v.   Nostrand,   46    N.  Y. 
Iowa,  432.  Contra:  Anon.,  2  Chitty,  375. 

255.  7  people   v.   Kilduff,  15  111.   492; 

3  State  v.  Dusman,  39  N.  J.  L.  677.     Kimball  v.  Lamprey,  19  N.  H.  215. 


§155.]  MANDAMUS  —  EIGHT   TO   PUBLIC    OFFICE.  189 

person  who  is  in  office  de  jure  and  de  facto  is  interfered 
-with  by  one  whose  lack  of  title  is  plain,  and  is  governed  by 
adjudicated  cases  in  our  own  courts,  it  is  not  only  proper, 
but  best,  to  settle  the  title  to  the  office  by  the  writ  of  man- 
damus, but  ordinarily  it  is  not  so.1  This  writ  has  also  been 
issued  to  compel :  the  delivery  of  the  mace  and  other  signs  of 
mayoralty,  and  the  books  and  property  of  the  corporation, 
to  the  succeeding  mayor;2  the  delivery  of  public  buildings 
to  the  board  of  public  buildings  by  the  officer  whom  they 
had  removed  from  the  charge  thereof;3  the  delivery  of  a 
rate  book  to  the  overseers  of  the  poor;4  the  delivery  of 
the  books  of  accounts  of  the  surveyor  of  highways  to  the 
church  wardens ; 5  the  delivery  of  the  regalia  of  a  corpora- 
tion ; ,;  and  the  delivery  of  the  jail  to  the  sheriff,  of  which 
by  law  he  is  entitled  to  the  custody.7  The  writ  has  also 
been  issued :  to  compel  the  steward,  who  kept  ,the  books,  to 
produce  them  at  the  corporate  meetings  to  enter  therein 
the  election  of  their  members ; 8  to  compel  a  municipal  offi- 
cer to  submit  his  books  of  account  to  the  officers  author- 
ized to  inspect  them ; 9  to  compel  the  registers  of  voters  to 
deposit  their  original  books  with  the  clerks  of  the  proper 
counties; 10  and  to  compel  building  commissioners,  upon  the 
cessation  of  their  duties,  to  deposit  their  building  plans  and 
specifications  with  the  proper  custodians  thereof.11  By  this 
writ  a  party  ma}7  obtain  an  inspection  of  public  books  and 
papers,12  but  he  must  show  grounds  of  a  special  or  public 
nature  before  the  writ  will  be  granted ; ls  but  an  inspection 

1  Lawrence  v.  Hanley,  84  Mich.  7  Felts    v.    Memphis    (Mayor),    2 
399.  Head,  G50 ;  Burr  v.  Norton,  25  Conn. 

2  Rex  v.  Owen,  5  Mod.  314 ;  Peo-  103 ;  Warner  v.  Myers,  4  Oreg.  72. 
pie  v.  Kilduff,  15  111.  492.  «  Calne  (Borough),  Case  of,  2  Stra. 

3  State  v.  Bacon,  6  Neb.  286.  Con-  948. 

tra  as  to    a    room,  because   there  9  Keokuk    (City)  v.    Merriam,  44 

was  another  remedy.    Washoe  Co.  Iowa,  432. 

(Com'rs)  v.  Hatch,  9  Nev.  357.  W  McDiarmid  v.  Fitch,  27  Ark.  106. 

4  R.  v.   Christchurch,  7  E.  &  B.  "  State  v.  Kirkley,  29  Md.  85. 
409 ;  R.  v.  Clapham,  1  Wils.  305.  12  3  Black.  Com.  110. 

s  King  v.  Round,  4  A.  &  E.  139.  u  Briggs,  Ex  parte,  1  E  &  E.  881 ; 

6  3  Black.  Com.  110.  ante,  §  14. 


190  MANDAMUS  —  EIGHT    TO    PUBLIC    OFFICE.  [§  156. 

of  the  records  of  an  executive  department  will  not  be 
granted,  when  such  inspection  may  be  detrimental  to  pub- 
lic interests.1     A  rated  parishioner  has  a  right  to  inspect 
the  accounts  of  expenditure  of  parish  money  kept  by  the 
guardians  of  the  poor.2    Any  one  can  trade  in  any  place, 
unless  such  right  is  taken  away  by  custom  or  by-law,  and 
when  he  is  charged  with  having  violated  a  city  ordinance 
by  so  doing,  he  has  a  right,  though  not  a  corporator,  to  in- 
spect the  corporation  books  to  ascertain  what  the  law  is 
which  it  is  charged  he  has  violated.3    A  county  clerk  who 
had  delivered  the  assessment  books  to  one  appointed  by 
the  county  authorities,  who  had  qualified,  is  not  liable  to  a 
writ  of  mandamus  to  compel  him  to  deliver  the  books  to 
one  who  claims  to  have  been  elected  assessor.     Such  clerk 
having  delivered  the  books  to  the  de  facto  officer,  no  more 
can  be  required  of  him.4     The  books  which  contain  the  pub- 
lic accounts  of  an  officer  become  thereby  public  books,  and 
a  mandamus  will  lie  to  compel  an  inspection  of  them,  or 
their  delivery  to  the  party  entitled  to  their  custody,  though 
such  officer  may  have  made  entries  therein  relative  to  other 
matters.5 

§  156.  Mandamus  not  lie  to  private  individual  to  sur- 
render official  books. —  Since  the  writ  of  mandamus  does 
not  run  to  compel  the  performance  of  any  duty  by  a  pri- 
vate party,  it  will  not  lie  to  compel  the  surrender  of  official 
books  by  one  who  is  not  shown  to  be  other  than  a  private 
individual.6  A  judge,  upon  the  termination  of  his  term  of 
office,  surrendered  the  books  thereof  to  his  successor,  but  a 
few  days  afterwards  he  took  them  away  surreptitiously.  A 
mandamus  to  compel  him  to  deliver  up  those  books  was 
refused,  because  it  was  not  alleged  that  he  was  acting  as  an 
officer.7    Where  a  private  party  had  made  a  book  of  the 

i  Brewer  v.  Watson,  61  Ala.  310.  5  King  v.  Payn,  1  Nev.  &  P.  524. 

2  Rex  v.  Great  Faringdon  (Guard-  6  Q.  v.  Hopkins,  1  Ad.  &  E.  (N.  S.) 

ians),  9  Barn.  &  C.  541.  16. 

s  Harrison  v.  Williams,  4  D.  &  R.  ^Hussey  v«  Hamilton,  5    Kans. 

820.  462. 

4  People  v.  Lieb,  85  111.  484 


§156.]  MANDAMUS EIGHT   TO   PUBLIC    OFFICE.  191 

surveys  and  plats  of  county  roads  under  a  contract  with 
the  county  court,  and  had  been  paid  therefor,  and  had  sub- 
sequently regained  the  possession  of  the  book,  the  court 
would  not  issue  a  writ  of  mandamus  to  compel  him  to  sur- 
render the  possession  thereof.1     In  such  cases  it  is  asserted 
that  the  writ  lies  only  against  an  ex-officer,  whether  of  a 
public  or  a  private  corporation,  company,  church  or  society, 
or  the  executor  or  widow  of  such  officer.2    The  decisions 
sustain  the  above  propositions,  though  we  think  they  ignore 
the  necessities  of  the  public  service.     We  have  found  but 
one  case  which  allowed  the  writ  to  issue  in  such  a  case  to  a 
private  party.     A  writ  was  applied  for  to  compel  the  re- 
spondent to  surrender  the  books  of  a  borough.     He  replied 
that  he  held  them  as  executor  of  A.,  who  had  held  them  as 
security  for  money  he  had  loaned  the  borough.     There  was 
no  allegation  that  A.  had  ever  been  an  officer.     The  court 
said  that,  since  the  respondent  had  admitted  that  he  had 
public  books  in  his  possession,  a  writ  of  mandamus  was 
proper  to  compel  him  to  surrender  them.3 

1  State  v.  Trent,  58  Mo.  571.  3  King  v.  Ingram,  1  W.  Black.  50. 

2  State  v.  Trent,  58  Mo.  571. 


CHAPTER  12. 

MANDAMUS  TO  PRIVATE  CORPORATIONS. 

157.  Mandamus  runs  to  private  corporations  because  they  are  the 

creation  of  the  state. 

158.  What  duties  of  a  private  corporation  are  enforceable  by  man- 

damus. 

159.  Illustrations  of  the  issue  of  the  writ  of  mandamus  to  private 

corporations. 

160.  Mandamus  to  compel  the  transfer  of  its  stock  by  a  private  cor- 

poration. 

161.  Mandamus  to  obtain  the  inspection  of  the  books  of  a  private 

corporation. 

162.  Mandamus  lies  to  common  carriers  to  prevent  discrimination. 

163.  Mandamus  will  not  he  to  a  private  corporation  when  there  is 

another  remedy. 

164.  Mandamus  will  not  go  against  a  private  corporation  when  it  is 

financially  unable  to  do  the  act  desired. 

165.  Mandamus  to  compel  officers  of  private  corporation  to  discharge 

their  duties. 

166.  Mandamus  to  restore  to  membership  in  a  private  corporation. 

167.  Will  a  mandamus  he  to  restore  to  membership  in  a  private  cor- 

poration when  no  pecuniary  interests  are  involved? 

168.  What  irregularities  in  expelling  a  member  of  a  private  corpora- 

tion will  vitiate  such  expulsion  when  it  is  reviewed  by  man- 
damus. 

169.  Expelled  members  must  appeal  to  appellate  tribunals  before  they 

can  call  for  a  mandamus. 

170.  Mandamus  to  restore  a  member  will  not  issue  when  he  may  be 

regularly  expelled  upon  his  restoration. 

171.  An  action  for  damages  for  expulsion  from  a  corporation  is  a 

waiver  of  all  right  to  apply  for  a  restoration  by  mandamus. 

172.  Mandamus  to  admit  to  membership  in  private  corporations. 

173.  Mandamus  to  restore  or  to  admit  an  officer  of  a  private  corporation. 

174.  Mandamus  to  benevolent  associations  to  pay  death  losses. 

175.  If  a  private  corporation  has  a  visitor,  a  mandamus  lies  only 

when  he  fails  to  act. 

176.  Mandamus  issues  in  ecclesiastical  matters  only  when  property 

rights  are  involved. 

177.  Mandamus  to  a  foreign  corporation. 


§§157,   158.]       MANDAMUS    TO    PRIVATE    CORPORATIONS.  193 

§  157.  Mandamus  runs  to  private  corporations  because 
they  are  the  creation  of  the  state.—  The  writ  of  man- 
damus lies  to  private  corporations.  This  may  be  considered 
to  be  an  exception  to  the  general  rule,  that  this  writ  only 
runs  to  public  officers.  However,  such  jurisdiction  is  well 
established,  and  the  reason  given  is  that  such  corporations 
are  the  creation  of  the  government,  and  that  a  supervisory 
or  visitorial  power  is  always  impliedly  reserved  to  see  that 
corporations  act  agreeably  to  the  end  of  their  institution,1 
that  they  keep  within  the  limits  of  their  lawful  power?,  and 
to  correct  and  punish  abuses  of  their  franchises.2  Such 
visitorial  power  is  exercised  by  the  state  through  its  com- 
mon-law courts.3  It  is  the  acceptance  of  the  charter  which 
subjects  the  corporation  to  the  supervision  of  the  proper 
legal  authorities; 4  consequently  the  court  will  not  attempt, 
by  the  writ  of  mandamus,  to  regulate  the  affairs  of  unin- 
corporated societies  or  associations.5 

§  158.  What  duties  of  a  private  corporation  are  en- 
forceable by  a  mandamus.— The  aid  of  a  writ  of  mandamus 
can  be  invoked  to  compel  a  private  corporation  to  exercise 
its  franchises,6  and  to  carry  out  fairly  and  fully  the  objects 
for  which  it  was  created.7  The  performance  of  any  duty 
incumbent  on  a  private  corporation  may  be  enforced  by 
this  writ,  but  this  duty  must  be  specific  and  plainly  im- 

1 R.  v.  Askew,  4  Burr.  2186 ;  Medi-  Pr.    69 ;     People   v.   German,    etc. 

cal,  etc.  Soc.  v.  Weatherby,  75  Ala.  Church,  53  N.  Y.  103.     Contra:  Otto 

*4&  v.  Journeymen,  etc.  Union,  75  Cat 

2  State  v.  Milwaukee  Chamber  of  308.  This  decision  is  sustained  by 
Commerce,  47  Wis.  670.  California    law,    which    allows    a 

3  State  v.  Georgia  Med.  Soc,  38  mandamus  to  be  brought  to  compel 
Ga.  608 :  State  v.  Milwaukee  Cham-  the  admission  of  a  party  to  the  use 
her  of  Commerce,  47  Wis.  670:  and  enjoyment  of  a  right  to  which 
Burt  v.  Michigan  G.  Lodge,  66  he  is  entitled.  3  Deering's  Cal.  Code 
Mich.  85 ;  Black,  etc.  Soc.  v.  Van-  (1885),  §  1085. 

dyke,  2  Whart.  309.  '  6  People  v.  N.  Y.   etc.   R.   R,  22 

4  State  v.  Georgia,  etc.  Med.  Soc,     Hun,  533. 

38Ga.608.  7R.   R.   Com'rs  v.  Portland,  etc. 

5  Burt  v.  Michigan  G.  Lodge,  66  R.  R.,  63  Me.  269;  State  v.  Hartford, 
Mich.   85 ;    Austin    v.   Searing,   16    etc.  R  R.,  29  Conn.  538. 

X.  Y.  112;  Fritz  v.  Muck,  62  How. 
13 


194  MANDAMUS    TO    PKIVATE    CORPORATIONS.  [§  159. 

posed.1  It  may  be  imposed  by  its  charter,2  by  the  general 
statutes,3  or  by  the  common  law,4  either  in  terms  or  by  fair 
and  reasonable  construction  and  implication,5  or  must  neces- 
sarily arise  from  the  nature  of  the  privileges  or  obligations 
which  the  charter  creates.6  The  English  courts  in  their 
discretion  formerly  refused  to  grant  the  writ  of  mandamus 
against  private  corporations,  unless  the  matters  involved 
were  important  on  public  grounds,  and  some  of  the  Ameri- 
can decisions  are  to  the  same  effect ; 7  but  a  perusal  of  these 
pages  will  show  that,  under  the  visitorial  power  of  the  state, 
any  breach  of  duty  by  a  private  corporation  may  be  cor- 
rected by  this  writ  under  the  general  principles  already 
mentioned  governing  its  issuance. 

§  159.  Illustrations  of  the  issue  of  the  writ  of  man- 
damus to  private  corporations. —  The  writ  of  mandamus 
has  been  issued  to  private  corporations  in  a  great  variety  of 
causes  to  compel  the  performance  of  various  duties  devolving 
upon  them.  It  has  been  issued  to  compel  them :  to  pay  the 
tax  assessed  on  their  capital  stock;8  to  complete  their  rail- 
road line;9  to  operate  all  of  their  railroad  line,  and  to 
restore  a  part  which  had  been  taken  up ; 10  to  construct  a 

People  v.  New  York,  etc.  R.  R.,  with  the  exercise  of  a  governmental 

104  N.  Y.  58.  function,  or  has  a  right  to  exercise 

2  State  v.  Einstein,  46  N.  J.  L.  479 ;  a  power  of  a  pub'ic  nature.  Cook 
State  v.  Patterson,  etc.  R.  R,  43  v.  College  Phy.  &  S.,  9  Bush.  541 ; 
N.  J.  L.  505.  Schmidt     v.      Abraham      Lincoln 

3  State  v.  Ousatonic  W.  Co.,  51  Lodge,  84  Ky.  490. 

Conn.  137;  Bailey  v.  Oviatt,  46  Vt.  "Lamphere  v.  Grand  Lodge,  47 

627,  Mich.   429;    Hargnell  v.  Lafayette 

*  State  v.  Republican,  etc.  R.  R,  17  B.  Soc,  47  Mich.  648. 

Neb.  647 ;  Trenton,  etc.  Co.,  In  re,  20  8  Emory    v.    State,    41    Md.   38; 

N.  J.  L.  659 ;  People  v.  Chicago,  etc.  Barney  v.  State,  42  Md.  480. 

R.   R,    67    111.    118;    Cummins  v.  9Q.  v.  Eastern  C.  R  R,  10  Ad.  &E. 

Evansville,  etc.  R  R,  115  Ind.  417.  531.     The  writ  for  this  purpose  has 

5  State  v.  Ousatonic  W.  Co.,  51  been  refused,  because  the  incorpo- 
Conn.  137.  ration  act  did  not  make  it  obliga- 

6  State  v.  Einstein,  46  N.  J.  L.  479.  tory  to  build  the  road.  York,  etc. 
In  Kentucky,  under  their  special  R.  R.  v.  Q.,  1  El.  &  Bl.  858 ;  Great 
statute,  it  is  held  that  the  writ  of  Western  R  R  v.  Q.,  1  El.  &  Bl.  874. 
mandamus  cannot  issue  to  a  private  10  People  v.  Albany,  etc.  R.  R,  24 
corporation,    unless  it  is  charged  N.   Y.   261;   King  v.   Severn,   etc. 


159.] 


MANDAMUS   TO    PRIVATE   CORPORATIONS. 


195 


bridge  over  its  railroad  track ; 1  to  construct  a  bridge  over 
its  canal;2  to  construct  a  bridge  over  a  river; 3  to  furnish  a 
cattle-guard  for  its  railroad  track ;  to  restore  a  highway 
to  its  former  condition;5  to  put  a  public  road  in  repair,6 
and  to  make  necessary  and  convenient  crossings  over  streets 
occupied  by  their  railroad  tracks  and  to  keep  them  in  re- 
pair;7 to  build  their  railroad  track  across  a  stream  so  as 
not  to  obstruct  it ; 8  to  submit  their  affairs  to  an  examina- 
tion ; 9  to  furnish  the  tax  court  with  the  names  and  resi- 
dences of  their  stockholders ; 10  to  allow  a  lot-owner  to  bury 
a  colored  person  in  his  lot ; u  to  build  a  railroad  depot  where 
the  commissioners  thought  public  necessities  required  it;12 
to  resume  the  use  of  an  abandoned  railroad  station ; 13  to 
receive  a  tax  receipt  in  payment  of  railroad  fare ; 14  and  to 


R  R,  2  B.  &  Aid.  646;  State  v. 
Hartford,  etc.  R  R,  29  Conn.  538 ; 
People  v.  Koine,  etc.  R  R,  103 
N.  Y.  95. 

1  People  v.  Chicago,  etc.  R  R,  67 
111.  118;  Boggs  v.  C,  B.  &  Q.  R  R, 
54  Iowa,  435 ;  State  v.  Missouri  P. 
R  R,  33  Kan.  176. 

2  State  v.  Savannah,  etc.  Co.,  26 
Ga.  665 ;  Trenton,  etc.  Co.,  In  re,  20 
N.  J.  L.  659. 

3  State  v.  Wilmington  B.  Co.,  3 
Hairing.  312. 

*  Boggs  v.  C,  B.  &  Q.  R  R,  54 
Iowa,  435. 

5  Cummins  v.  Evansville,  etc. 
R  R,  115  Ind.  417;  State  v.  Hanni- 
bal, etc.  R  R,  86  Mo.  13 ;  People  v. 
Dutchess,  etc.  R  R,  58  N.  Y.  152. 
When  a  railroad  company  has  s 
discretion  as  to  the  manner  of  re- 
storing a  highway,  across  or  along 
which  its  railroad  has  been  con- 
structed, such  discretion  is  a  minis- 
terial one.  The  act  of  restoration 
must  be  done,  and  as  to  that  there 
is  no  discretion.  If  it  elects  a  mode 
of  restoration,  and  such  mode  fails, 


and  yet  the  company  claims  to 
have  discharged  its  duty,  the  court 
in  a  mandamus  proceeding  to  com- 
pel the  performance  of  such  duty 
should  point  out  in  the  writ 
wherein  it  has  failed,  and  direct 
particularly  what  must  be  done,  so 
that  there  may  not  be  another  fail- 
ure. People  v.  Dutchess,  etc.  R  R, 
58  N.  Y.  152. 

6  Pittsburgh,  etc.  P.  R  v.  Com., 
104  Pa.  St.  583. 

7  Indianapolis,  etc.  R.  R.  v.  State. 
37  Ind.  489. 

8  State  v.  N.  E.  R.  R.,  9  Rich.  247. 
;>  People  v.  State  Ins.  Co.,  19  Mich. 

392.  ' 

10  Firemen's  Ins.  Co.  v.  Baltimore 
(Mayor),  23  Md.  296. 

11  Mount  Moriah  C.  Asso.  v.  Com., 
81  Pa.  St.  235. 

12  Railroad    Com'rs    v.    Portland, 
etc.  R.  R,  63  Me.  269. 

13  State  v.  New  Haven,  etc.  R  R, 
41  Conn.  134. 

•J  Mobile,  etc.  R  R  v.  Wisdom,  5 
Heisk.  125. 


196  MANDAMUS   TO   PRIVATE    CORPORATIONS.  [§  160. 

stop  their  railroad  trains  at  a  certain  place  as  required  by- 
law.1 

§  160.  Mandamus  to  compel  the  transfer  of  its  stock  by 
a  private  corporation. —  The  writ  of  mandamus  has  often 
been  invoked  to  compel  the  transfer  of  the  stock  of  private 
corporations.  As  a  general  rule  the  writ  has  been  denied 
in  such  cases.  Sometimes  it  has  been  denied,  because  third 
parties,  not  before  the  court,  claimed  to  be  the  owners,  but 
the  reason  generally  assigned  was,  that  it  was  not  a  favorite 
chattel,  so  there  was  no  proemium  affectionis  involved  in 
the  case,  but  any  other  stock  of  the  same  company  would 
do,  which  could  be  purchased  in  the  market ;  consequently 
a  suit  for  damages  was  an  adequate  remedy.2  The  writ 
has,  however,  been  allowed  in  several  cases  by  reason  of 
certain  statutory  provisions.  Where  stock  was  sold  on  ex- 
ecution the  law  required  the  proper  officer  of  the  corpora- 
tion to  make  the  transfer,  and  the  transfer  was  compelled, 
because  such  officer  became  pro  hac  vice  a  public  officer; 3 
but  a  mandamus  would  not  be  granted  in  case  of  a  private 
sale.4  So  a  mandamus  was  granted  to  a  corporation  to 
allow  a  sheriff  to  transfer  on  the  books  of  the  corporation 
stock  sold  by  him,  in  accordance  with  the  provisions  of  law ; 

•  New  Haven,  etc.  R.  R.  v.  State.  State  v.  People's,  etc.  Assoc,  43  N. 

44  Conn.  376.  J.  L.  389 ;  Freon  v.  Carriage  Co., 

^  Murray  v.  Stevens,  110  Mass.  95;  42  Ohio  St  30.     Contra,  State  v. 

State    v.    Guerrero,    12  Nev.    105 ;  New  Orleans  R.  R.,  38  La,  An.  312. 

Birmingham  F.  I.  Co.  v.  Com.,  92  The  writ  was  allowed  where  there 

Pa.  St  72;  People  v.  Parker  Vein  was  no  dispute  as  to  the  ownership. 

Coal  Co.,  10  How.  Pr.  543 ;  Shipley  State  v.  New  Orleans,  etc.  Co.,  25 

v.  Mechanics'  Bank,  10  John.  484 ;  La.  An.  413.    It  was  also  said  to  be 

Durham  v.  Monumental,  etc.  Co.,  9  allowable,  where  there  was  a  clear 

Oreg.  41 ;    Baker  v.    Marshall,   15  legal  right  and  no  other  remedy, 

Minn.  180 ;  Townes  v.  Nichols,  73  but  was  denied  in  that  case,  because 

Me.  515 ;  Stackpole  v.  Seymour,  127  the  relator  had  only  an  equitable 

Mass.    104 ;    State  v.  Warren,   etc.  title,  being  an  assignee  merely  by 

Co.,   32  N.   J.    L.  439;  Kimball  v.  delivery.     Burnsville  I.  Co.  v.  State, 

Union   Water    Co.,    44    Cal.    173;  119  Ind.  382. 

Firemen's  I.  Co.,  Ex  parte,  6  Hill,  »  Bailey  v.  Strohecker,  38  Ga  259. 

243 ;  State  v.  Rombauer,  46  Mo.  155 ;  4  Bank  of  State  v.  Harrison,  66 

Tobey  v.    Hakes,    54    Conn.    274 ;  Ga.  696. 


§  1C0.J  MANDAMUS   TO   PEIVATE    CORPORATIONS.  197 

but  the  court  stated  that  the  general  rule  was  otherwise.1 
The  writ  was  granted  in  a  case,  where  the  court  placed 
stress  on  the  lack  of  any  other  sufficient  remedy  under  the 
circumstances  of  that  case  and  the  fact  that  it  was  a  quasi- 
public  corporation  (a  railroad),  and  seemed  to  imply  that 
it  might  not  be  granted  in  the  case  of  a  purely  private  cor- 
poration.2 In  granting  a  mandamus  to  compel  a  transfer 
of  stock  as  provided  by  statute,  the  court  maintained  that 
damages  were  not  an  adequate  remedy,  because  the  relator 
did  not  thereby  obtain  specific  relief,  which  included  a  right 
to  be  a  stockholder  and  to  participate  in  the  exercise  of  its 
franchises.3  A  suit  for  damages  does  not  alwavs  seem  to 
be  adequate,  since  with  the  damages  obtained  the  relator 
may  not  be  able  to  buy  the  stock  desired,  or  it  may  be  im- 
portant to  have  the  stock  in  order  to  be  eligible  to  office,4 
or  to  obtain  control  of  the  organization  of  the  corporation 
in  order  to  prevent  unskilful  management  of  its  affairs. 
As  to  the  latter  trouble  a  relator  is  not  without  relief,  where 
courts  of  equity  have  jurisdiction  to  compel  a  corporation 
to  recognize,  as  a  member  thereof,  one  who  has  the  equi- 
table title  to  any  of  its  stock.  In  such  a  case  a  court  of 
common  law  could  reasonably,  in  the  exercise  of  its  discre- 
tion, refuse  to  grant  a  mandamus.  The  English  courts  at 
first  refused  to  grant  a  mandamus  to  compel  a  private  cor- 
poration to  enter  on  its  books  the  transfer  of  any  of  its 
stock,  claiming  that  such  matters  were  private,  and  that 
this  writ  was  confined  to  matters  of  public  and  general  im- 
portance.5 This  position  they  have  long  since  abandoned, 
and  have  often  issued  this  writ  to  compel  such  transfer.6 
They  now  refuse  the  use  of  the  prerogative  writ  for  that 

1  State  v.  First  Nat.  Bank,  89  Ind.  5  King  v.  London  Assur.  Co.,  1 

302.  D.  &  R.  510. 

2Townshend  v.  Mclver,  2  Rich.  6  Reg.  v.  Midland,  etc.   R  R,   9 

(N.  S.)  25.  L.  T.  R  (N.  S.)  151 ;  King  v.  Wor- 

3  Memphis,    etc.    Co.   v.    Pike,   9  cester,  etc.  Co.,  1  Man.  &  Ry.  529 ; 
Heisk.  697.  Norris  v.  Irish  L.  Co.,  8  EL  &  BL 

4  Freon  v.  Carriage  Co.,  42  Ohio  512. 
St.  3a 


198  MANDAMUS   TO    PRIVATE    CORPORATIONS.  [§  161. 

purpose,  since  the  same  end  may  bo  attained  by  the  new 
writ  of  mandamus  lately  authorized.1 

§  161.  Mandamus  to  obtain  an  inspection  of  the  oooks 
of  a  private  corporation.—  A  stockholder  of  a  private  cor- 
poration may  by  the  writ  of  mandamus,  if  such  privilege  is 
denied  him,  obtain  an  inspection  of  the  corporate  books. 
He  must,  however,  show  that  he  desires  such  inspection  for 
some  just  or  useful  object,  or  some  injury  which  he  will 
sustain  if  he  is  not  allowed  to  inspect  them.2  He  will 
then  be  allowed  to  inspect  them  at  the  proper  place  and 
on  proper  occasions,3  but  only  to  the  extent  necessary  for 
the  purpose  indicated.4  It  has  been  granted  to  enable  him 
to  obtain  the  facts  correctly  to  enable  him  to  sue  the  cor- 
poration and  its  directors  for  abuse  of  their  positions.5  The 
writ  will  not  be  granted  when  it  is  asked  for  mere  curios- 
ity,6 or  for  speculative  purposes,7  or  personal  ends,8  or  upon 
merely  alleging  grounds  on  which  the  relator  believes  that 
the  corporate  affairs  have  been  improperly  conducted  and 
the  officers  unduly  chosen,  and  complaining  of  misgovern- 
ment  in  some  particular  instances  not  affecting  the  parties 
themselves  or  any  matter  then  in  dispute,9  or  if  there  is  fair 
ground  to  believe  the  relator  intends  to  make  an  improper 
use  of  the  information  he  is  seeking.10  A  creditor  may  also 
in  this  mode  obtain  inspection  of  corporate  books,  when 
they  contain  information  which  by  law  he  is  entitled  to  ob- 
tain. When  by  law  an  execution  creditor  of  a  corporation, 
whose  lands  were  not  sufficient  to  pay  its  debts,  was  allowed 
to  issue  an  execution  against  those  stockholders  who  had 
not  fully  paid  for  their  stock,  he  was  granted  &,  mandamus 

i  Q.  v.  Lambourn  V.  R.  R.,  22  Q.  5  Com.  v.  Phoenix  Iron  Co.,  105 

B.  Div.  463.  Pa.  St.  111. 

2  Hatch  v.  City  Bank,  1  Rob.  470 ;  «  People  v.  Walker,  9  Mich.  328. 
Sage  v.Lake  Shore,  etc.  R.  R,  70  7  Phoenix  Iron  Co.  v.  Com.,  113 
N.  Y.  220.  Pa.  St.  563. 

3  People  v.  Walker,  9  Mich.  328;  8  People  v.  Northern  P.  R.  R,  18 
Sage  v.  Lake  Shore,  etc.  R  R,  70  Fed.  Rep.  471. 

N.  Y.  220.  9  Kimg  v.    Merchants'  T.    Co.,   2 

4  King    v.   Merchants'  T.   Co.,  2    Barn.  &  Ad.  115. 

Barn.  &  Ad.  115.  10  State  v.  Einstein,  46  N.  J.  L.  479. 


§  161.]  MANDAMUS   TO   PEIVATB    CORPORATIONS.  199 

to  compel  the  corporation  to  let  him  inspect  its  register  of 
shareholders.1  A  corporation  cannot  refuse  such  inspection 
because  it  does  not  keep  proper  books,  and  has  other  en- 
tries and  transactions  therein.  It  must  allow  an  inspection 
of  such  books  as  it  does  keep  of  transactions,  which  a  stock- 
holder has  a  right  to  know.2  Though  a  corporation  must 
keep  account  books  at  its  office  in  the  state  of  its  creation, 
open  to  the  inspection  of  all  its  stockholders,  yet  so  long 
as  it  is  lawful  for  it  to  do  business  in  another  state  it  may 
keep  the  necessary  books  there,  and  it  suffices  if  monthly 
statements  are  sent  to  the  home  office,  which  are  properly 
entered  and  are  open  to  the  inspection  of  all  the  stockhold- 
ers.3 When,  however,  a  stockholder  is  entitled  to  such  in- 
spection by  statute  as  a  matter  of  right,  he  need  assign  no 
reason  for  his  request.4  A  director  of  a  corporation,  being- 
one  of  the  officers  who  conduct  and  manage  its  affairs,  is 
entitled  of  right  to  an  inspection  of  its  books  and  need  as- 
sign no  reason  for  his  wish  to  do  so.3 

1 Q.  v.  Derbyshire,  etc.  R.  R.,  3  El.  mandamus  would  not  go  at  the  ca- 

&  Bl.  784.  price  of  the  curious  or  suspicious, 

2  People  v.  Pacific  M.  S.  Co.,  50  and  denied  the  writ  Com.  v.  Em- 
Barb.  280.  pire  P.  R.  R.,  134  Pa.  St.  237.  Where 

3  Pratt  v.  Meriden  C.  Co.,  35  Conn,  the  statute  allowing  the  inspection 
36.  of  the  books  of  a  private  corpora- 

4  State  v.  St.  Louis,  etc.  R  Co.,  29  tion  by  its  stockholders  did  not  in- 
Mo.  Ap.  301 ;  State  v.  Sportsman's,  elude  the  book  of  which  an  inspec- 
etc.  Assoc,  29  Mo.  Ap.  326 ;  Winter  tion  was  sought,  the  general  rule, 
v.  Baldwin.  89  Ala.  483 ;  Foster  v.  that  a  good  motive  for  the  inspee- 
White,  86  Ala.  467 ;  Lyon  v.  Amer-  tion  must  be  shown,  was  held  to 
ican  Screw  Co.,  16  R.  I.  472.  A  state  apply.  Lyon  v.  American  Screw 
constitution  required  a  corporation  Co.,  16  R  I.  472.  Where  the  statute 
to  keep  a  list  of  stockholders  open  allowed  a  stockholder  to  inspect  the 
to  the  inspection  of  stockholders  corporate  books,  it  was  held  that 
and  creditors.  The  court  declared  it  was  not  necessary  for  him  to  neg- 
that  it  did  not  say  that  such  list  ative  the  existence  of  an  improper 
could  be  copied,  and,  even  if  it  did  motive  in  his  pleadings,  since  such 
say  so,  it  could  only  be  done  for  a  improper  motive  was  a  matter  of 
reasonable  and  proper  purpose.  The  defense.  Foster  v.  White,  86  Ala. 
relator  said  he    wished  to  confer  467. 

with  the  other  stockholders  about        5  People  v.  Mott,  1  How.  Pr.  247 ; 
suing  to  set  aside  a  lease  made  by    People  v.  Throop,  12  Wend.  183. 
the  company.     The  court  said  a 


200  MANDAMUS    TO    PRIVATE    CORPORATIONS.       [§§  162,  163. 

§  162.  Mandamus  lies  to  common  carriers  to  prevent 
discrimination. —  This  writ  has  often  been  used  to  compel 
common  carriers,  and  other  corporations  subject  to  similar 
obligations,  to  discharge  the  duty  imposed  upon  them  by  the 
statutory  or  common  law  of  treating  all  persons  alike,  of 
extending  to  all  without  discrimination  the  use  of  their 
services,  or  of  their  appliances  or  property.1  It  has  been 
used:  to  compel  telephone  companies  to  put  telephones  in 
private  offices  and  to  furnish  the  like  service  to  all  parties ; 2 
to  compel  a  railroad  company  to  issue  to  relator  a  commu- 
tation ticket,  which  thev  refused  to  do  on  account  of  an- 
other  transaction ; 3  to  compel  a  gas  company  to  furnish  gas 
upon  the  payment  of  all  money  due  them  from  the  appli- 
cant;4 to  compel  an  irrigation  company  to  furnish  water 
to  those  coming  within  the  class  of  the  community  for 
whose  alleged  benefit  it  was  created,5  and  to  compel  a 
railroad  company  to  carry  freight  for  all  on  the  same  terms.6 
This  writ  may  also  be  used  under  similar  circumstances 
against  those  who  have  by  its  use  impressed  their  property 
with  a  public  use.  This  subject  has  been  already  consid- 
ered.7 

§  163.  Mandamus  will  not  lie  to  a  private  corporation 
when  there  is  another  remedy. —  When  there  is  another 
adequate  remedy,  a  mandamus  will  not  run  against  a  pri- 
vate corporation,  in  accordance  with  the  general  principles 
governing  its  issuance.     A  private  corporation  will  not  be 

1  State  v.  Delaware,  etc.  R.  R,  48  6  People  v.  New  York,  etc.  R  R. 
N.  J.  L.  55 ;  Central,  etc.  Co.  v.  28  Hun,  543.  This  has  been  denied 
State,  118  Ind.  194.  on  the  ground  that  by  its  charter 

2  State  v.  Nebraska  Tel.  Co.,  17  such  carriage  was  not  compulsory. 
Neb.  126 ;  Hockett  v.  State,  105  Ind.  Robins,  Ex  parte,  3  Jur.  103.  As  to 
250;  Central,  etc.  Co.  v.  State,  118  a  private  party  it  has  been  held 
Ind.  194 ;  Central,  etc.  Co.  v.  State,  that  an  action  for  damages  was 
123  Ind.  113.  a  sufficient  remedy  (People  v.  New 

3  State  v.  Delaware,  etc.  R  R,  48  York,  etc.  R  R.,  22  Hun,  533),  but 
N.  J.  L.  55.  that  the  state  might  have  a  man- 

4  People  v.  Manhattan,  etc.  Co.,  damns.    28  Hun,  543. 
45  Barb.  136.  » Ante,  §§  25,  20. 

5  Price  v.  Riverside,  etc.  Co.,  56 
Cal.  431. 


§§  164,  165.]      MANDAMUS   TO   PRIVATE   CORPORATIONS.  201 

required  to  pay  a  dividend  it  has  declared,  since  an  action 
at  law  is  an  adequate  remedy ; '  nor  will  a  railroad  company 
be  thus  compelled  to  receive  and  transport  freight  without 
charging  discriminating  rates,  when  the  statute  makes  it 
liable  to  the  party  injured  thereby  in  double  the  over- 
charge.2 

§  164.  Mandamus  will  not  go  against  a  private  corpora- 
tion when  it  is  financially  unable  to  do  the  act  desired. — 
A  mandamus  was  refused  to  compel  the  completion  of  a 
railroad  according  to  charter,  when  the  corporation  had 
faithfully  expended  all  the  money  it  was  allowed  to  raise, 
and  its  power  to  condemn  lands  had  expired.3  A  railroad 
company  was  not  required  to  build  a  bridge  over  its  track, 
when  it  had  no  power  to  borrow  money,  and  its  share  cap- 
ital was  spent  and  its  borrowing  powers  were  exhausted.4 
It  has  been  asserted  that  when  a  corporation  is  wholly  un- 
able to  discharge  its  duties  to  the  public,  a  quo  warranto 
and  not  a  mandamus  is  the  proper  remedy.5 

§  165.  Mandamus  to  compel  officers  of  private  corpora- 
tions to  discharge  their  duties. —  The  writ  of  mandamus 
may  be  used  to  compel  the  officers  of  private  corporations 
to  discharge  the  duties  incumbent  upon  them.  They  have 
been  thus  required  to  call  an  election  of  their  successors  in 
office  as  provided  by  law,6  in  the  mode  prescribed  by  their 
by-laws,  when  the  law  made  it  incumbent  on  them  so  to 

1  People  v.  Central,  etc.  Co.,  41  unless  it  had  funds  to  fence  it,  and 
Mich.  166.  that  if  it  did  anything  it  should  do 

2  State  v.  Mobile,  etc.  R  R,  59  Ala.  all.  Q.  v.  Luton  Roads  (Trustees?, 
321.  1  A.&E.(N.S.)812.   Of  course  such 

3  Q.  v.  London,  etc.  R  R.,  16  Ad.  a  writ  cannot  be  enforced,  but  in  pro- 
&  E.  (N.  S.)  864.  ceedings  thereunder  for  contempt 

4  Bristol,  etc.  R  R,  In  re,  3  Q.  B.  in  disobeying  the  writ,  the  court  can 
Div.  10.  Where  an  application  was  consider  the  question  of  impossibil- 
made  to  compel  a  turnpike  com-  ity  and  the  prior  actions  of  the  offi- 
pany  to  fence  its  road  through  A.'s  cers  of  the  company. 

grounds  where  it  had  constructed  5Ohio,  etc.  R  R.  v.  People,  120 

it,  and  the  company  returned  that  111.  200. 

it  had  no  funds,  the  court  granted  6  State  v.  Lady  Bryan  M.  Co.  (Bd. 

the  writ,  stating  that  the  company  Trustees),  4  Nev.  400. 

should  not  have  taken  the  ground 


202  MANDAMUS    TO    PRIVATE   CORPORATIONS.  [§  1G0. 

do,1  and  the  failure  to  adopt  a  by-law  on  the  subject  did  not 
prevent  the  issuance  of  the  writ.2  An  unreasonable  post- 
ponement of  an  election,  required  by  law  to  be  held  annu- 
ally, is  equivalent  to  a  failure  to  call  such  election.3  Where 
a  law  plainly  required  the  board  of  trustees  of  a  canal  com- 
pany to  pay  interest  on  its  stock,  and  it  was  admitted  they 
had  sufficient  money  for  the  purpose,  a  mandamus  was  is- 
sued to  compel  them  to  make  such  payment.4  This  writ 
has  been  issued  to  compel :  the  master  to  put  the  corporate 
seal  to  a  presentation  to  a  living ; 5  the  keepers  thereof  to 
put  the  common  seal  of  a  university  to  the  instrument  of 
appointment  of  its  high  steward;6  the  warden  of  a  college 
to  put  its  common  seal  to  its  answer  in  a  suit,  though  such 
answer  was  contrary  to  his  own  separate  answer  in  that 
suit ; 7  and  an  officer  to  deliver  up  the  books,  papers,  accounts, 
etc.,  of  the  corporation  to  his  successor  in  office  or  to  the 
corporation  itself.8  Where  its  secretary  bought  books  for 
a  corporation  and  entered  therein  its  minutes,  and  its  sub- 
scriptions were  entered  there  also,  he  was  not  allowed  to 
retain  them  when  he  went  out  of  office,  though  the  corpo- 
ration had  not  paid  him  therefor.  The  books  had  become 
corporate  books.  He  had  bought  the  books  for  the  corpo- 
ration and  looked  to  it  to  pay  him  therefor.9 

§  166.  Mandamus  to  restore  to  member  ship  in  private 
corporations. —  The  writ  of  mandamus  has  often  been  used 
to  compel  private  corporations  to  restore  to  membership 
corporators  whom  they  have  wrongfully  disfranchised  or 
suspended.10    As  a  general  rule  the  power  to  disfranchise  a 

i  State  v.  Wright,  10  Nev.  167.  99  Ind.  133;  St.  Luke's  Church  v. 

2  People  v.  Cummings,  72  N.  Y.  Slack,  7  Cush.  226 ;  Rex  v.  Wildman, 

433.  2  Stra.  879 ;  State  v.  McCullough,  3 

3Mottu  v.  Primrose,  23  Md.  482.  Nev.  202;  Anon.,  1  Barn.,  K.  B.  402. 

4  State    v.    Wabash,     etc.    Canal  9  State  v.  Goll,  32  N.  J.  L.  285. 

(Trustees),  4  Ind.  495.  1°  Burt  v.  Grand  Lodge  Masons,  66 

5Q.  v.  Kendall,  1  Q.  B.  366.  Mich.  85 ;  Crocker  v.  Old  South  So- 

6  Rex  v.  Cambridge  (V.  Chan.),  3  ciety,  106  Mass.  489 ;  Fritz  v.  Muck, 
Burr.  1647.  62  How.  Pr.  69 ;  Med.  etc.  Soc.  v. 

7  Rex  v.  Windham,  Cowp.  377.  Weatherly,  75  Ala.  248;  Sibley  v. 
"Fasnacht  v.  German  L.  Assoc,    Cartaret  Club,  40  N.  J.  L.  295 ;  Black, 


§  166.]  MANDAMUS   TO   PRIVATE   CORPORATIONS.  203 

corporator,  unless  it  be  expressly  conferred  by  statute,  ex- 
tends only  to  three  causes:  1.  For  infamous  offenses,  and 
then  only  after  a  conviction  by  a  court  of  law.     2.  For 
offenses  against  the  corporation  itself,  which  tend  to  its 
destruction.     3.  For  offenses  of  a  mixed  nature,  which  are 
compounded  of  the  two  first  named.1     It  is  also  considered 
that,  where  the  power  of  disfranchisement  is  conferred  on 
a  corporation  by  general  terms,  its  power  is  no  greater 
than  that  conceded  as  inherent  in  all  corporations,  as  just 
mentioned.2     A  joint-stock  company,  or  one  owning  prop- 
erty, cannot  expel  a  member  or  forfeit  his  stock  for  any 
cause,  unless  such  power  is  expressly  conferred  on  it  by  its 
charter.3    When  a  court  is  called  upon  to  restore  by  man- 
damus a  person  to  his  membership  in  a  corporation,  it  will 
only  inquire  whether  the  cause  or  ground  of  disfranchise- 
ment is  legally  sufficient,  and  whether  the  proceedings  were 
regular  according  to,  and  tested  by,  the  charter  and  by- 
laws of  the  corporation.'    If  such  facts  exist,  the  court  will 
not  interfere,  as  it  will  not  review  the  merits  of  the  case, 

etc  Soc  v  Vandyke,  2  Whart.  309;  »  Evans  v.  Philadelphia  Club,  50 

Pelle  v    Mechanic  '  Aid  Soc,  22  Pa.  St.  107;  Mulroy  v.  Knights  of 

2  BO!  Levin's  B.  Assoc,  v.  Honor,  28  Mo^  Ap.  463;  We  v. 

Benson, 76 Tex.  552 ;  Allnutt  v.  Sub-  Brownell,   2  Daly,  3  9,] People  v. 

sidiarv  etc  Court, 62  Mich.  110.  Con-  N.  Y.  Com.  Assoc,  18  Abb.  Pr.  2.1 

"aK  expelled  wrongfully  from  a  Con,   v.   St.  Patrick   B.  Assoc,   2 

religious  corporation,  a  mandamus  Binn.  441.       . 

to  restore  him  to  membership  will  » State  v.  Chamber  of  Commerce, 

not  lie,  since  he  has  a  right  of  ac-  20  Wis.  63. 

Hon  Gainst  any  persons  interfer-  3  Evans  v.  Philadelphia  Club,  50 

n^vX^  rights"    People  v.  Ger-  Pa.  St.  107 ;  People  v.  N.  Y.  Com 

man  etc.  Church,  53  N.  Y.  103.     A  Assoc,  18  Abb.  Pr.  271 ;  Long  Is  and 

Corporator  entitled  to  divide  a  cer-  R  R,  In  re,  19  Wend.  37     Tins  is 

tain  part  of  the  profits  of  the  cor-  not  the  general  view  as  to  benevo- 

poration  was  suspended  till  he  paid  lent  corporations  winch  own  prop- 

a  certain  fine.    A  mandamus  to  re-  erty  for  their  own  use.    See  §§  4J, 

store  him  to  his  membership  was  167. 

refused,  because  he  might  have  an  *Med.  etc.  Soc  v.  Weatherly,  75 

action  against  those  who  might  dis-  Ala.  248;  Com.  v  German  Society 

turb  him  in  the  reception  of  his  15  Pa.  St    251 ;  Barrows  v.   Mass. 

share  of  the  profits.    King  y.  Free  Med.  Soc,  12  Gush.  402. 
Fishers  (Company),  7  East,  353. 


204  MANDAMUS    TO   PEIVATE    COEPOEATIONS.  [§  166. 

but  will  allow  the  action  of  the  corporation  to  be  conclu- 
sive in  that  matter.1  In  mandamus  proceedings  to  restore 
a  person  expelled  from  a  corporation,  the  court  will  con- 
sider the  legality  of  the  action  of  the  corporation,  and  in 
so  doing  will  construe  the  by-law  under  which  it  acted  in 
making  the  expulsion.2  When  a  by-law  is  unreasonable, 
the  courts  will  declare  it  to  be  void,  and  all  proceedings 
thereunder  to  be  invalid.3  In  construing  such  by-laws,  the 
court  will  interpret  them  reasonably,  if  possible,  not  scruti- 
nizing their  terms  for  the  purpose  of  making  them  void, 
nor  holding  them  invalid,  if  every  particular  reason  for 
them  does  not  appear.4  The  by-laws  will  not  be  sustained, 
unless  they  are  reasonable  and  adapted  to  the  purposes  of 
the  corporation.5  A  member  of  a  corporation  cannot  be 
disfranchised,  though  a  by-law  of  a  corporation  may  so  pro- 
vide :  for  uttering  false  and  malicious  charges  against,  or 
vilifying,  another  member,6  since  the  corporation  has  noth- 
ing to  do  with  private  quarrels ;  for  not  submitting  his 
business  controversies  with  other  members  to  arbitration,7 
for  every  one  has  a  right  to  resort  to  the  courts  of  the  land 
for  the  enforcement  of  his  rights ;  for  not  paying  increased 
dues  of  membership,  which  had  been  so  increased  after  the 
corporation  had  ceased  to  be  operative,  and  when  there 


1  Leech  v.  Harris,  2  Brewst  571 ;  Patrick  B.  Society,  2  Binn.  441 ; 
Society  for  Visit,  v.  Com.,  52  Pa  St.  People  v.  Saint  Franciscus,  etc.  Soc, 
125 ;    Med.   etc.  Soc.  v.  Weatherly,  24  How.  Pr.  216. 

75  Ala.  248 ;  Com.  v.  Pike  B.  Soc,  *  Hibernia  F.  E.  Co.  v.  Com.,  93 

8  Watts  &  S.  247 ;  Anacosta  Tribe  Pa.  St  264. 

v.   Murbach,   13  Md.  91;  Com.   v.  5  People    v.   Medical  Society,   24 

German  Soc,  15  Pa  St.  251 ;  Black,  Barb.  570. 

etc.  Soc.  v.  Vandyke,  2  Whart.  309 ;  6  Mulroy  v.  Knights  of  Honor,  28 

King  v.  Cambridge  (Chan.),  6  T.  R.  Mo.  Ap.  463 ;  Com.  v.  St.  Patrick 

89.  B.    Assoc,  2  Binn.  441;   Fuller  v. 

2  State  v.  Georgia  M.  Soc,  38  Ga  Plainfield  A.  School,  6  Conn.  532. 
608 ;  Med.  etc  Soc.  v.  Weatherly,  75  7  State  v.  Union  M.  Exchange,  2 
Ala  248.  Mo.  Ap.  96 ;  Savannah  C.  Exchange 

3  State  v.  Union  M.  Exchange,  2  v.  State,  54  Ga  668 ;  State  v.  Cham- 
Mo.  Ap.  96 ;  Savannah  C.  Exchange  ber  of  Commerce,  20  Wis.  63. 

v.  State,  54  Ga  668;  Com.  v.  St. 


§  166.]  MANDAMUS   TO   PEIVATE    CORPORATIONS.  205 

was  no  occasion  for  such  increase ; '  for  neglect  of  official  duty 
in  not  acting  on  committees ; 2  for  rendering  professional 
services  for  less  compensation  than  the  tariff  of  charges 
adopted  by  the  corporation,  since  a  by-law  imposing  such  a 
tariff  on  the  corporators  is  against  public  policy,  and  con- 
trary to  law ; 3  for  not  taking  the  sacrament,  though  the 
corporation  was  a  benevolent  society,  composed  of  the  mem- 
bers of  a  certain  church,  because  such  action  is  contrary  to 
the  law  of  religious  liberty ; 4  for  not  paying  assessments 
imposed  on  the  members  of  the  corporation  by  an  author- 
ity existing  in  another  jurisdiction,  since  no  domestic  cor- 
poration can  subject  itself  or  its  members  to  such  alien 
authority;5  for  mere  misemployment  of  money  as  one  of 
the  guardians  of  the  poor ; 6  or  for  becoming  a  surety  on  the 
bond  of  a  colored  citizen,  who  has  been  elected  to  a  public 
office,  since  such  action  is  encouraged  by  the  law.7  In  such 
proceedings  the  corporation  must  act  in  good  faith,  or  its 
decree  will  be  abrogated  in  a  proceeding  by  mandamus  to 
restore  the  expelled  member.8  On  the  other  hand,  when 
the  corporation  had  the  power  of  expulsion,  and  the  by-law 
governing  the  case  was  reasonable  and  adapted  to  the  pur- 
poses of  the  corporation,  and  the  act  charged  was  an  offense 
against  the  corporation  itself,  the  courts  have  refused  to 
interfere  to  restore  an  expelled  member.  Where  the  charter 
of  a  benevolent  society  authorized  it  to  expel  members 
thereof  for  being  engaged  in  scandalous  or  improper  pro- 
ceedings which  might  injure  its  reputation,  the  court  re- 
fused to  restore  a  member  who  had  been  expelled  for  alter- 
ing a  bill,  and  presenting  it  to  the  corporation  as  a  claim 

1  Hihernia  F.  E.  Co.  v.  Com.,  93  6  Com.  v.  Guardians  of  the  Poor, 
Pa.  St.  264.  6  S.  &  R.  469. 

2  Fuller  v.  Plainfleld  A.  School,  6  "  State  v.  Georgia  Medical  Soc,  38 
Conn.  532.  Ga.  608. 

3  People   v.   Medical  Society,  24  8  Mulroy  v.  Knights  of  Honor,  28 
Barb.  570.  Mo.  Ap.  463 ;  State  v.  Henry  Clay 

4  People  v.  Saint  Franciscus,  etc.  Lodge  (N.  J.,  June  16,  1891),  22  Atl. 
Society,  24  How.  Pr.  216.  Rep.  63 ;  Otto  v.  Journeymen,  etc. 

5  Lamphere  v.  Grand  Lodge,  etc.,  Union,  75  CaL  308. 
47  Mich.  429. 


206  MANDAMUS    TO   PKIVATE    COEPOEATIONS.  [§  167. 

against  it.1  Charging  a  benevolent  corporation  with  money 
which  he  had  never  expended  for  it  is  a  good  ground  for 
the  expulsion  of  a  member,  when  such  corporation  has  the 
power  of  expulsion.2  A  corporation,  formed  to  establish  a 
high  moral  standard  among  its  members  in  conducting 
business  operations,  and  to  exercise  some  control  over  their 
trading  transactions  between  themselves  and  with  others, 
was  sustained  in  its  expulsion  of  a  member  for  obtaining 
goods  under  false  pretenses,  because  such  member  had  vio- 
lated his  duty  toward  the  corporation.3  Though  the  by-law 
may  be  reasonable  and  proper,  yet  the  members  of  a  corpo- 
ration will  not  be  allowed,  under  the  pretext  of  enforcing 
the  by-law,  to  take  personal  or  private  revenge,  or  to  make 
it  the  instrument  of  religious  intolerance,  or  of  political 
prescription ;  and  when  it  appears  that  under  a  by-law  so 
used,  a  person  has  been  expelled  from  a  corporation,  the 
courts  will  restore  him  to  his  membership  by  a  writ  of 
mandamus} 

§  167.  Will  mandamus  lie  to  restore  to  membership  in 
a  private  corporation  when  no  pecuniary  interests  are 
involved? — Some  courts  have  refused  to  issue  a  writ  of 
mandamus  to  restore  a  person  to  his  membership  in  a  cor- 
poration when  no  pecuniary  interest  was  involved.  The 
writ  is  only  used  to  protect  a  person  from  substantial  in- 
jury, and  the  courts  consider  that  he  does  not  sustain  any 
substantial  injury  by  his  loss  of  membership  unless  there 
was  some  pecuniary  advantage  arising  to  him  therefrom. 
The  franchise  itself  is  property;  the  loss  of  membership 
by  expulsion  may  be  followed  by  very  injurious  indirect 
consequences,  and  the  damages  arising  therefrom  may  be 
impossible  of  calculation.  We  think  the  weight  of  author- 
itv  is  in  favor  of  the  issuance  of  the  writ  in  such  cases.5 

iCom.  v.  Philanthropic  Society,        4  State  v.  Georgia  Med.  Soc,  88 

5  Binn.  486.  Ga.  608. 

2  Com.  v.  Guardians  of  Poor,  6  S.        5  See  §  49,  where  the  decisions  are 

6  R.  469.  reviewed. 

3  People  v.  New  York  C.  Assoc, 
18  Abb.  Pr.  271. 


168.] 


MANDAMUS    TO   PRIVATE    CORPORATIONS. 


207 


§  168.  What  irregularities  in  expelling  a  member  of  a 
private  corporation  will  vitiate  such  expulsion  when  it 
is  reviewed  by  mandamus. —  When  the  proceedings  of  a 
corporation  by  which  a  corporator  was  expelled  were  irreg- 
ular, as  tested  by  its  charter  and  by-laws,  he  may  be  re- 
stored to  membership  by  a  writ  of  mandamus}  He  cannot 
be  expelled  without  any  notice  that  such  a  proceeding  is 
contemplated  and  without  full  opportunity  to  be  heard  in 
reply  to  the  charge  against  him,  since  such  a  proceeding  is 
abhorrent  to  all  reason.2  There  must  be  some  one  to  in- 
quire and  determine  when  the  facts  exist  which  cause  the 
forfeiture.3     The  expulsion  of  a  member  of  a  corporation 


1  State  v.  Cartaret  Club,  40  N.  J. 
L.  295;  People  v.  Musical,  etc. 
Union,  118  N.  Y.  101. 

2  Pulford  v.  Fire  Dept.,  31  Mich. 
458 ;  State  v.  Temperance  B.  Ass'n, 
42  Mo.  Ap.  485 ;  King  v.  Cambridge 
(Univ.),  8  Mod.  148;  Delacy  v. 
Neuse  R.  W.  Co.,  1  Hawks,  274 ; 
People  v.  San  Franciscus,  etc.  Soc, 
24  How.  Pr.  216 ;  Mulroy  v.  Knights 
of  Honor,  28  Mo.  Ap.  463. 

3  Sibley  v.  Cartaret  Club,  40  N.  J. 
L.  295 ;  Com.  v.  Pa.  Ben.  Inst..  2  S. 
&  R.  141.  There  are  a  number  of 
cases  which  decide  that  benevo- 
lent corporations  which  contract  to 
pay  their  members  a  certain  insur- 
ance upon  their  deaths,  the  amount 
whereof  is  collected  by  assessment 
made  after  the  death  of  the  party 
insured,  may  provide  by  their  by- 
laws that  such  insurance  shall  be 
forfeited  without  notice  for  non- 
payment of  assessments  within  a 
designated  time.  The  courts  claim 
that  such  by-laws  are  necessary  to 
keep  alive  such  organizations. 
Mulroy  v.  Knights  of  Honor,  28  Mo. 
Ap.  463;  Borgraefe  v.  Knights  of 
Honor,  22  Mo.  Ap.  127 ;  Illinois,  etc. 
Soc.  v.  Baldwin,  86  111.  479.    All  such 


by-laws  which  were  adjudged  to  be 
reasonable  and  valid  were  confined 
to  defaults  on  the  part  of  the  mem- 
ber himself.  McDonald  v.  Ross- 
Lewin,  29  Hun,  87.  Should  such  a 
by-law  be  presented  whereby  a 
member  was  ipso  facto  suspended 
and  deprived  of  all  claim  for  insur- 
ance by  reason  of  a  default  of  an 
officer  of  his  subordinate  lodge  rel- 
ative to  remitting  the  funds  col- 
lected to  the  principal  officers  of  the 
corporation,  or  otherwise,  a  differ- 
ent question  would  arise  and  such 
by-law  would  no  doubt  be  held  to 
be  unreasonable  and  void.  In  the 
case  of  Peet  v.  Maccabees,  83  Mich. 
92,  a  beneficiary  certificate  was  con- 
sidered to  be  vitiated  because  the 
member  to  whom  it  was  issued  had 
died  during  the  suspension  of  his 
subordinate  lodge  for  failure  of  its 
officers  to  remit  certain  funds  to 
the  grand  lodge  of  the  order  in  ac- 
cordance with  its  by-laws.  In  that 
case,  however,  which  was  decided 
by  a  divided  court,  the  suspension 
of  the  individual  members  did  not 
go  into  effect  till  thirty  days  after 
the  suspension,  and  the  court  con- 
sidered that  it  was  to  be  supposed 


208  MANDAMUS   TO   PEIVATE   CORPORATIONS.  [§  1G8. 

has  been  set  aside:  because  the  objectionable  words  uttered 
at  a  meeting  of  the  society  for  which  he  was  expelled  were 
not  objected  to  or  written  down  at  the  time  as  required  by 
the  by-laws;1  he  was  not  notified  to  appear  and  defend 
himself  before  the  fine  was  imposed,  for  the  non-payment 
of  which  he  was  expelled,  his  notice  being  to  pay  the  fine 
or  to  show  cause  to  the  contrary ; 2  the  fine  was  imposed 
without  notice,  formal  complaint  or  trial;3  the  fine,  for 
non-payment  of  which  he  was  expelled,  was  imposed  with- 
out a  by-law  defining  the  offense  and  imposing  the  penalty, 
and  he  was  not  furnished  with  a  copy  of  the  charges  pre- 
ferred nor  opportunity  to  be  present  at  the  taking  of  testi- 
mony against  him,  nor  opportunity  to  offer  testimony  in  his 
own  behalf ; 4  the  expulsion  was  by  a  part  of  the  corpora- 
tors, whereas  an  expulsion  must  be  by  the  body  of  the  cor- 
porators, unless  the  charter  otherwise  provides;5  the  nec- 
essary proportion  of  the  members  did  not  vote  for  expulsion 
at  the  regular  meeting  when  the  matter  was  considered, 
though  they  so  voted  at  a  subsequent  meeting;6  the  mem- 
ber was  dropped  without  notice  or  opportunity  to  be 
heard.7  When  it  appears  that  the  member  was  not  ex- 
pelled, but  restrictions  were  placed  on  his  attempts  to  ex- 
ercise certain  rights  claimed  by  him  as  a  member  of  the 
corporation,  and  there  is  nothing  to  show  that  such  restric- 
tions were  placed  upon  him  otherwise  than  in  the  adminis- 
tration of  the  internal  discipline  and  government  of  the 
corporation  under  its  by-laws  and  rules,  a  mandamus  in  his 


that  the  members  of  such  lodge  3  State  v.  Milwaukee  Cham.  Com.. 

would  during  those  thirty  days  be-  47  "Wis.  670. 

come  aware  of  the  suspension  of  *  Erd  v.  Bavarian  Assoc,  67  Mich. 

their  lodge  by  general  information,  233. 

by   the    non-receipt  of   notices  of  5  State  v.  Chamber  of  Commerce. 

assessments  and  at  their  lodge  meet-  20  Wis.  63;  Evans  V.Philadelphia 

ings.  Club,  50  Pa,  St.  107. 

1  People  v.  American  Institute,  44  «Com.  v.  Guardians  of  Poor,  6  S. 
How.  Pr.  468.  &  R.  469. 

2  People  v.  Benevolent  Society,  3  1  Wachtel   v.  Noah  Widows',  etc. 
Hun,  361.  Soc,  84  N.  Y.  28 ;  Pulford  v.  Fire 


§§  169,  170.]       MANDAMUS    TO    PRIVATE    CORPORATIONS.  20 9 

behalf  will  not  lie.1     Mere  irregularities,  however,  leading 
up  to  the  expulsion,  will  not  vitiate  the  conclusion  reached.2 
§  169.  Expelled  members  must  appeal  to  corporate  ap- 
pellate tribunals  before  they  can  ask  for  a  mandamus. — 

It  is  generally  held  that,  when  a  corporator  is  aggrieved  by 
those  acting  with  authority  in  a  corporation,  he  must  appeal 
to  the  appellate  tribunals  provided  by  said  corporation  be- 
fore applying  to  the  legal  tribunals;3  but  he  cannot  be  en- 
tirely prohibited  from  resorting  to  the  legal  tribunals.4  In 
one  case  it  was  held  that,  having  chosen  his  remedy  by  ap- 
peal to  the  corporate  appellate  tribunal,  the  party  was 
bound  by  its  decision.  In  this  case  such  decision  was  un- 
necessary for  the  disposition  of  the  case,  and  it  seems  to 
stand  unsupported.5  Where,  however,  the  corporate  au- 
thorities are  without  jurisdiction  to  try  and  expel  the  mem- 
ber on  the  charges  preferred,  their  action  is  null  and  void, 
and  he  can  at  once  resort  to  the  legal  tribunals  to  protect 
his  rights,  ignoring  the  corporate  appellate  tribunals.8 

§  170.  Mandamus  to  restore  a  member  will  not  issue 
when  he  may  be  legally  expelled  upon  his  restoration. — 
When  a  corporator  has  been  disfranchised  by  irregular 
proceedings,  but  it  appears  that  proper  grounds  exist  for 
disfranchisement,  the  courts  in  their  discretion  will  refuse 
to  issue  the  writ  of  mandamus  to  compel  a  restoration 

Dept,  31  Mich.  458;  Sibley  v.  Car-  tra:  Supreme  Council  v.  Garrigus. 

taret  Club.  40  N.  J.  L.  295 ;  Riddell  104  Ind.  133. 

v.  Harmony  F.  Club,  8  Phila.  310.  •»  Bauer  v.  Samson  Lodge,  102  Ind. 

1  Crocker  v.  Old  South  Society,  262;  Poultney  v.  Bachman,  10  Abb. 
106  Mass.  489.  N.  C.  252.     Where  the  by-law  pro- 

2  Mulroy  v.  Knights  of  Honor,  28  vided  that  he  should  appeal  to  the 
Mo.  Ap.  463.  committee  which  expelled  him,  the 

3  Screwmen's  B.  Assoc,  v.  Benson,  court  considered  the  chance  of  their 
76  Tex.  552;  Poultney  v.  Bachman,  changing  their  action  to  be  so  re- 
31  Hun,  49 ;  German  R.  Church  v.  mote  that  it  would  not  require  such 
Com.,  3  Pa.  St.  282 ;  Chamberlain  appeal.  Loubat  v.  Le  Roy,  40  Hun. 
v.  Lincoln,  129  Mass.  70;  State  v.  546. 

Henry  Clay  Lodge  (N.  J.,  June  16,  5  Burt  v.  Michigan  G.  Lodge,  66 

1891),  22  Atl.   Rep.  63 ;    Oliver  v.  Mich.  85. 

Hopkins,  144  Mass.  175 ;  Karcher  v.  e  Mulroy  v.  Knights  of  Honor,  28 

Supreme  Lodge,  137  Mass.  368.   Con-  Mo.  Ap.  471. 
14 


210  MANDAMUS   TO    PRIVATE    CORPORATIONS.       [§§  171,  172. 

to  membership.  This  writ  is  only  sued  to  accomplish  the 
ends  of  justice,  and  to  attain  substantial  results.  In  such 
cases  the  restored  member  might  be  again  expelled  by  reg- 
ular proceedings  for  the  same  offense,1  since  a  void  proceed- 
ing is  no  bar  to  a  subsequent  correct  proceeding.2  For 
similar  reasons  a  corporation,  which  is  required  by  law  to 
admit  to  membership  therein  all  persons  possessing  certain 
qualifications,  will  not  be  compelled  by  mandamus  to  admit 
one  as  a  member,  when  it  clearly  appears  that,  if  admitted, 
he  would  be  at  once  liable  to  expulsion  for  gross  ignorance 
or  misconduct.3  It  has  been  considered  that  the  records  of 
the  corporation  must  show  the  exact  cause  for  the  expul- 
sion of  a  member,  and  all  the  proceedings  necessary  to  au- 
thorize such  action,  else  the  court  will  invalidate  the  pro- 
ceedings because  it  does  not  appear  that  they  are  legal  and 
regular.4 

§  171.  An  action  for  damages  for  expulsion  from  a 
corporation  is  a  waiver  of  all  right  to  apply  for  a  resto- 
ration by  a  mandamus. —  In  some  cases  parties  expelled 
from  membership  in  corporations  have  brought  actions  for 
the  damages  thereby  sustained  by  them.  Such  action  is 
based  upon  the  theory  that  the  plaintiff  has  lost  his  mem- 
bership and  all  its  rights,  and  that  he  cannot  be  restored 
thereto,  otherwise  he  has  no  cause  of  action.  If  his  rights 
are  not  gone,  and  gone  irrevocably,  his  petition  is  not  true 
wherein  he  says  he  has  been  deprived  of  those  rights. 
Therefore,  in  order  to  maintain  such  an  action,  he  necessa- 
rily abandons  all  interest  in  the  societ}^.  It  has  accordingly 
been  held  that,  by  bringing  such  suit,  the  right  to  seek  res- 
titution to  membership  by  a  writ  of  mandamus  is  waived.5 

§  172.  Mandamus  to  admit  to  membership  in  private 
corporations. —  Where  by  law  a  party  is  entitled  to  be  ad- 

1  People  v.  Anshei  C.  H.  Cong.,  37        3  paine,  Ex  parte,  1  Hill,  665. 
Mich.  542;   State  v.  Lusitanian  P.        4  People  v.  Mechanics'  Aid  Soc, 
Soc,  15  La.  An.  73;  State  v.  Tern-    22  Mich.  86. 

perance  B.  Ass'n,  42  Mo.  Ap.  485.  5  State  v.  Slavonska  Lipa,  28  Ohio 

2  State  v.  Milwaukee  Ch.  of  Com-    St  665. 
merce,  47  Wis.  670. 


§§   173,   174.]       MANDAMUS    TO    PRIVATE    CORPORATIONS.  211 

mitted  as  a  member  of  a  private  corporation,  provided  he 
possesses  certain  qualifications,  a  mandamus  will  lie  to  such 
corporation  to  admit  to  membership  therein  a  person  who 
possesses  such  qualifications.1  A  code  of  ethics  adopted  by 
such  corporation  prior  to  his  admission  to  membership 
therein  is  no  ground  for  the  exclusion  of  an  applicant.2 

§  173.  Mandamus  to  restore  or  to  admit  an  officer  of  a 
private  corporation. —  The  power  to  remove  one  of  its  offi- 
cers from  his  official  position  for  an  adequate  cause  is  an 
incident  inherent  to  every  corporation ; 3  but  the  exercise 
thereof  does  not  affect  the  private  rights  of  the  corporator 
in  the  franchise.4  Though  the  removal  is  irregular,  the 
court  will  not  grant  a  mandamus  to  restore  the  officer,  un- 
less his  tenure  of  the  office  is  permanent.  It  will  not  be 
granted  where  the  officer  may  be  removed  by  a  majority 
vote  of  the  corporators,5  nor  where  there  are  good  causes 
for  his  removal,  though  he  was  removed  by  irregular  pro- 
ceedings.6 Where  the  power  of  amotion  from  office  is  dis- 
cretionary with  the  corporation,  such  power  may  be  exer- 
cised without  notice  to  the  officer  and  without  a  hearing.7 
Where  a  party  has  been  elected  to  an  office  in  a  private 
corporation,  he  may,  by  the  writ  of  mandamus,  compel  it 
to  admit  and  swear  him  into  such  office.3  A  mandamus 
will  not  lie  to  compel  a  private  corporation  to  proceed  to 
fill  one  of  its  offices,  so  long  as  there  is  a  de  facto  incumbent 
thereof.  The  incumbent  must  first  be  ousted  by  a  quo 
warranto.9 

§  174.  Mandamus  to  benevolent  associations  to  pay 
death  losses. —  In  America  a  number  of  benevolent  corpo- 
rations have  been  organized  which  contract  to  pay  a  cer- 

1  Rex  v.  Askew,  4  Burr.  2186.  5  Evans  v.  Hearts  of  Oak  B.  Soc, 

^People  v.  Medical  Soc,  32  N.  Y.  12  Jur.  (N.  S.)  163. 

187.  6  Paine,  Ex  parte,  1  Hill,  665. 

3  Evans  v.  Philadelphia  Club,  50  7  Livingston  v.    Trinity    Church 

Pa  St.   107 ;  White  v.  Brownell.  2  (Rector),  45  N.  J.  L.  230. 

Daly,  329.  8King  v.  Bedford  Level  (Corp.), 

«  Evans  v.  Philadelphia  Club,  50  6  East,  356. 

Pa,  St  107.  9  Harrison  v.  Simonds,  44  Conn. 

318. 


212  MANDAMUS    TO    PRIVATE    CORPORATIONS.  [§  174. 

tain  sum  of  money  to  designated  parties  upon  the  death  of 
a  corporator.  These  corporations  possess  no  capital,  but 
procure  the  money  required  to  pay  such  death  losses  by 
assessments  on  all  the  corporators.  The  assistance  of  the 
writ  of  mandamus  has  often  been  sought  to  compel  such 
corporations  to  levy  assessments  on  their  members  in  order 
to  pay  such  losses.  When  the  corporation  denies  all  lia- 
bility, a  suit  must  first  be  brought  to  determine  the  liabil- 
ity, and  then  a  mandamus  may  be  obtained  to  compel  the 
corporation  to  levy  an  assessment  to  pay  such  judgment.1 
When  the  contract  is  an  agreement  to  pay  a  certain  sum 
of  money,  a  suit  therefor  is  an  adequate  legal  remedy.2 
When  the  agreement  is  to  pay  the  amount  of  an  assess- 
ment, not  exceeding  a  certain  sum,  a  suit  must  first  be 
brought  to  determine  the  amount  of  the  liability.3  Since  a 
mandamus  does  not  lie  to  enforce  a  private  contract,  a  suit 
must  be  brought  on  the  contract,4  but  when  the  local  law 
allows  it,  a  mandamus  to  compel  the  levy  of  the  amount 
ascertained  to  be  due  may  be  asked  for  in  such  suit.5  A 
corporation  cannot  by  the  form  of  its  contract  confer  orig- 
inal jurisdiction  on  a  court  to  enforce  it  by  a  mandamus 
proceeding.6  The  right  to  issue  a  mandamus  to  collect 
such  claims  can  only  be  sustained  on  the  theory  that  it  is 
the  legal  duty  of  a  corporation  to  pay  its  debts,  and  the 
courts  will  enforce  such  duties  by  compelling  such  corpo- 
ration to  exercise  its  powers  to  obtain  such  money  in  the 
mode  provided  therefor.  When  the  by-laws  of  such  corpora- 
tion provide  that  the  members  shall  be  subject  to  but  one 
assessment  for  each  death  loss,  a  mandamus  will  not  lie  to 
levy  a  second  assessment  when  the  first  assessment  has  not 
realized  money  enough  to  pay  the  death  loss  in  full.7 

1  Burland    v.   Northwestern,  etc.  5  Hail  v.  Pottawattamie,  etc.  Co., 
Assoc,  47  Mich.  424.  74  Iowa,  39. 

2  Excelsior,  etc.  Assoc,  v.  Riddle,  6  Burland  v.  Northwestern,    etc. 
91  Ind.  84.  Assoc,  47  Mich.  424. 

3  Burland  v.  Northwestern,   etc.  7  People  v.   Masonic,   etc.  Ass'n, 
Assoc,  47  Mich.  424.  126  N.  Y.  615. 

4  Bates  v.  Detroit,  etc  Assoc,  47 
Mich.  646. 


§  175.]  MANDAMUS    TO    PRIVATE    CORPORATIONS.  213 

§  175.  If  a  private  corporation  has  a  visitor,  a  man- 
damus lies  only  when  he  fails  to  act. —  The  writ  of  man- 
damus is  never  granted  where  there  is  another  adequate 
remedy",  nor  when  there  is  another  tribunal  or  person  with 
authority  to  give  the  proper  redress.  Visitors  of  corpora- 
tions have  power  to  keep  them  them  within  the  legitimate 
sphere  of  their  operations  and  to  correct  all  abuses  of  au- 
thority and  to  nullify  all  irregular  proceedings.  In  America 
there  are  very  few  corporations  which  have  private  visitors, 
and  in  the  absence  of  such  the  state  is  the  visitor  of  all  cor- 
porations. In  England  the  founder  of  an  eleemosynary 
corporation  and  his  heirs  and  assigns  are  its  visitors,  while 
the  king,  who  acts  through  the  common-law  courts,  is  the 
visitor  of  civil  corporations,  unless  a  visitor  is  expressly  ap- 
pointed, and  the  ordinary  is  the  visitor  of  all  spiritual  cor- 
porations.1 The  private  laws  of  a  corporation  are  to  be 
judged  by  the  visitor  thereof,  and  the  courts  will  not  inter- 
fere in  such  cases,2  as:  to  restore  a  person  to  his  fellowship 
in  a  college,3  to  admit  one  chosen  by  a  majority  of  the  fel- 
lows to  the  mastership  of  a  college,4  and  to  admit  one  to 
the  chaplaincy  of  an  asylum  whom  the  visitors  had  removed 
and  to  pay  him  the  arrears  of  his  salary.5  When  a  visitor 
declines  to  hear  an  appeal,  a  mandamus  will  issue  to  com- 
pel him  to  hear  it.  When  he  has  acted  his  judgment  is  final.6 
When  a  corporate  duty  devolves  upon  a  person  who  is  also 
the  visitor  of  the  corporation,  the  duty  may  be  enforced  by 
a  writ  of  mandamus  as  though  there  were  no  visitor.7     The 

i  1  Black.  Com.,  480, 481,  482 ;  Rex  *  Dr.  Patrick's  Case,  1  Keb.  286, 

v.  Chester  (Epis.),  Stra.  797;  Rex  v.  833,  1  Lev.  65,  2  Keb.  65. 

Chester  (Bishop),  1  Wils.  206;  Bar-  5Q.  v.  Middlesex  (Just),  2  Ad.  & 

kinson's  Case,  3  Mod..265 ;  King  v.  E.  (N.  S.)  433. 

St.  Catharine's  Hall,  4  T.  R.  233.  « King  v.  Worcester  (Bishop),   4 

2Walker'sCase,  Cas.  Temp.  Hard.  M.  &  S.  415;  6  Bacon's  Ab.,  Title 

212 ;  Q.  v.  Chester  (Dean),  15  Q.  B.  "  Man."   C.   2 ;    Per  Lord    Holt  in 

513.  Philips  v.  Bury,  2  T.  R.  346 ;  King 

3  Parkinson's   Case,  3  Mod.   265 ;  v.  Ely  (Bishop),  5  T.  R.  475. 

Appleford's  Case,   1  Mod.  82 ;   Dr.  7  Rex  v.  Chester  (Epis.),  Strange 

Widdiugton's  Case,  1  Lev.  23 ;  King  797. 
v.  New  College,  2  Lev.  14. 


214  MANDAMUS    TO    PRIVATE    CORPORATIONS.  [§  17C. 

visitor's  duties  are  confined  to  the  enforcement  of  the  pri- 
vate laws  of  the  corporation.  When  the  laws  of  the  land 
are  disobeyed,  the  courts  will  take  cognizance  of  the  matter. 
A  mandamus  was  issued  to  the  officers  of  a  college  to  com- 
pel them  to  remove  fellows  thereof  who  had  failed  to  take 
a  certain  oath,  as  required  by  the  law  of  the  land.1 

§  176.  Mandamus  issues  in  ecclesiastical  matters  only 
when  property  rights  are  affected. —  Applications  have 
often  been  made  to  the  courts  for  writs  of  ma.idamus  rela- 
tive to  the  acts  of  ecclesiastical  tribunals.  Since  in  America 
there  is  no  connection  between  church  and  state,  the  courts 
have  no  direct  control  over  them  as  official  bodies  or  as  offi- 
cers, so  the  writ  of  mandamus  will  not  run  to  them.  But 
their  actions  may  come  in  question  where  private  corpora- 
tions have  subjected  themselves  by  their  charters  to  the 
decisions  of  certain  ecclesiastical  tribunals,  and  the  writ  of 
mandamus  is  sought  to  compel  such  private  corporation  to 
take  action  contrary  to  the  decisions  of  such  tribunals. 
Since  such  corporations  are  by  their  charters  subject  to  such 
ecclesiastical  tribunals,  it  is  the  duty  of  their  officers  to  obey 
the  decrees  emanating  therefrom.  When  members  of  such 
corporations  ask  for  a  writ  of  mandamus  to  prevent  the  en- 
forcement of  such  decrees,  the  courts  inquire  first  whether 
any  rights  of  property  of  the  relator  are  involved.  The 
courts  will  not  interfere  unless  the  relator's  rights  of  prop- 
erty will  be  affected  by  such  action.2  Though  the  relator's 
rights  of  property  are  involved  in  the  proposed  action,  yet 
the  judgment  of  the  ecclesiastical  tribunal  is  conclusive  as 
to  purely  ecclesiastical  offenses,  if  it  had  jurisdiction  in  the 
premises  under  the  laws  of  the  church  organization  which 
created  it.3     The  courts  will   not  review  the  decisions  of 

1  R.  v.  St.  John's  College,  4  Mod.  Walker  v.  Wainwright,  16  Barb. 
233.  486;     Connitt    v.    Reformed,    etc. 

2  Livingston  v.  Trinity  Church  Church,  54  N.  Y.  551 ;  State  v. 
(Rector),  45  N.  J.  L.  230 ;  Bouldin  v.  Hebrew  Congreg.,  31  La.  An.  205 ; 
Alexander,  15  Wall.  131;  Sale  v.  German  Reformed  Church  v.  Com., 
Baptist  Church,  62  Iowa,  26.  3  Pa.  St.  282. 

3  Chase   v.  Cheney,   58   I1L    509; 


§  177.]  MANDAMUS    TO    PRIVATE    CORPORATIONS.  215 

ecclesiastical  tribunals,  nor  inquire  whether  such  decisions 
were  justified  by  the  truth  of  the  case.1  Such  church  tri- 
bunals are  the  best  judges  of  what  constitutes  an  offense 
against  the  word  of  God  and  against  the  discipline  of  the 
church.2  Their  decisions  are  also  conclusive  on  doubtful 
and  technical  questions,  involving  a  criticism  of  the  canons, 
even  though  they  may  comprise  jurisdictional  facts.3  The 
regularity  of  their  proceedings  will  not  be  inquired  into  by 
the  courts,  since  every  competent  tribunal  must  of  neces- 
sity regulate  its  own  formulas,4  and  the  decree  will  be  ac- 
cepted as  conclusive  proof  of  the  matters  therein  contained.5 
The  converse  of  these  propositions  is,  that  when  property 
rights  are  involved  and  the  church  did  not  have  jurisdiction 
under  the  rules  of  the  church  in  the  matter,  the  courts  will 
issue  the  writ  of  mandamus  in  proper  cases  to  prevent  the 
enforcement  of  such  decrees,  provided  the  cases  are  such 
as  fall  within  the  principles  under  which  such  writs  are 
issued. 

§  177.  Mandamus  to  a  foreign  corporation.— Whether 
a  writ  of  mandamus  will  run  against  a  foreign  corporation 
seems  to  be  a  questionable  proposition.  Under  the  com- 
mon law  the  officers  of  a  foreign  corporation  did  not  rep- 
resent the  corporation  and  were  not  recognized  as  such.6 
The  attorneys  or  agents  of  such  corporations,  however,  are 
recognized  as  such.7  Where  the  state  statute  was  broader 
than  the  common  law,  and  authorized  the  use  of  the  writ 
of  mandamus  to  restore  a  person  to  the  use  and  enjoyment 

1  State  v.  Farris,  45  Mo.  183 ;  Gros-  4  Harmon  v.  Dreher,  1  Speer's  Eq. 
venor  v.  United  Society,  118  Mass.     Cas.  87. 

78 ;  Walker  v.  Wainwright,  16  Barb.  5  Bouldin  v.  Alexander,  15  Wall. 

486 ;  Harmon  v.  Dreher,  1  Speer's  131 ;  Shannon  v.  Frost.  3  B.  Mon. 

Eq.    Cas.    87;     State     v.    Hebrew  253. 

Congreg.,  31  La,  An.  205;  Connitt  «  McQueen  v.  Middleton  M.  Co., 

v.  Reformed,  etc.  Church,  54  N.  Y.  16  John.  5 ;  State  v.  Penn.  R.  R,  42 

551.  N.  J.  L.  490;  State  v.  McCullough, 

2  German  R.  Church  v.  Com.,  3  3  Nev.  202. 

Pa.  St.  282.  7  State  v.  McCullough,  3  Nev.  202 ; 

3  Chase  v.  Cheney,  58  111.  509.  McQueen  v.  Middletown  M.  Co.,  16 

John.  5. 


216  MANDAMUS    TO   PRIVATE    CORPORATIONS.  [§  177. 

of  a  right  from  which  he  was  unlawfully  precl tided  by  an- 
other person,  such  writ  was  issued  to  enable  the  agent  of  a 
foreign  corporation  to  represent  it  instead  of  another  person 
who  claimed  to  be  the  proper  representative.1  But  it  has 
been  decided  that  the  rule  of  the  common  law  is  obsolete, 
and  the  writ  of  mandamus  was  issued  against  a  foreign  cor- 
poration doing  business  in  the  state,  and  was  served  on  its 
officers  within  the  state.2 

i  State  v.  McCullough,  3  Nev.  202.    2  state  v.  Penn.  R.  R.,  42  N.  J.  L.  490. 


CHAPTER  13. 

MANDAMUS  TO  CANVASSERS  OF  ELECTIONS. 

§  178.    The  duties  of  canvassing  boards  are  ministerial. 

179.  When  the  canvassing  board  may  reject,  and  when  they  must 

count,  votes. 

180.  Will  any  evidence  be  received  except  the  returns  when  a  man- 

damus is  asked  for  against  the  canvassers  of  an  election? 

181.  A  mandamus  will  issue  to  compel  the  proper  officer  to  declare  the 

result  of  the  election. 

182.  Mandamus  will  issue  to  the  canvassing  board  though  they  have 

already  given  another  the  certificate. 

183.  The  peremptory  writ  will  specifically  direct  the  canvassing  board 

what  to  do. 

184.  Mandamus  will  not  lie  when  another  remedy  or  the  board  had 

discretion  or  the  writ  was  illegal. 

185.  By  mandamus  the  canvassing  board  may  be  required  to  recon- 

vene and  do  their  duty,  though  they  have  adjourned  sine  die. 

§  178.  The  duties  of  canvassing  officers  are  ministe- 
rial.—The  writ  of  mandamus  has  often  been  used  to  com- 
pel the  performance  of  their  duties  by  those  officers  who 
have  had  charge  of  elections  and  of  the  declaration  of  the 
results  thereof.     Such  duties  are  very  important  and  are 
vitally  connected  with  the  well-being  of  a  republic,  wherein 
the  whole  governmental  forces  are  controlled  by  the  results 
of  elections.     The  law  has  wisely  left  but  little  to  the  dis- 
cretion of  such  officers,  and  has  thereby  subjected  them  to 
the  supervision  and  control  of  the  courts.    It  may  be  stated, 
as  an  almost  invariable  rule,  that  the  duties  of  judges  of 
elections  and  of  canvassing  boards  are  purely  ministerial, 
and  that  the  writ  of  mandamus  lies  to  compel  the  proper 
performance  thereof.1     Where  the  system  of  registering 

1  Wiliford  v.  State,  43  Ark.  62 ;  325 ;  Jayne  v.  Drorbaugh,  63  Iowa, 
Dalton  v.  State,  43  Ohio  St.  652 ;  711 ;  State  v.  Williams,  95  Mo.  159 ; 
Calaveras  (Co.)  v.  Brockway,  30  CaL    Mackey,  Ex  parte,   15  S.   C.  322; 


218  MANDAMUS    TO    CANVASSEKS    OF    ELECTIONS.  [§  179. 

voters  prior  to  the  election  has  been  adopted,  the  register  of 
voters  may  be  compelled  by  mandamus  to  register  those 
applying  therefor,  who  possess  the  qualifications  required 
by  law  for  registration,1  or  to  place  one's  name  on  the 
voter's  list  when  it  has  been  improperly  left  off  such  list,2 
or  to  restore  one  to  the  registration  list  whose  name  has 
been  improperly  stricken  therefrom,3  unless  such  registering 
officers  have  been  granted  judicial  power  in  such  matters.4 
§  179.  When  the  canvassing  board  may  reject,  and 
when  they  must  count,  votes. —  In  the  various  cases  of 
mandamus  which  have  arisen  in  connection  with  elections, 
the  courts  seem  to  have  made  no  distinction  in  their  rulings 
between  the  acts  of  the  judges  of  the  precincts,  who  receive 
and  count  the  votes,  and  the  acts  of  the  boards  canvassing 
the  returns,  since  the  writ  is  only  applicable  to  their  minis- 
terial acts,  which  in  such  cases  are  very  similar;  and  herein 
we  will  also  refer  to  them  indifferently  in  all  cases  as  can- 
vassing boards.  It  is  the  duty  of  a  canvassing  board  to 
canvass  all  the  votes  cast.5  Though  their  duties  are  con- 
sidered to  be  ministerial,  yet  certain  of  such  duties  are  so 
far  discretionary  or  judicial,  that  the  courts  will  not  inter- 
fere therein  by  mandamus;  or,  if  they  be  considered  to  be 
ministerial,  yet  they  are  not  plain,  and  the  writ  only  runs 
relative  to  plain  ministerial  duties.  Where  a  ballot  was  so 
marked  that  it  required  some  judgment  and  discretion  to 

Lyman  v.  Martin,  2  Utah,  136;  2McCulloch  et  al,  Re,  35  Up.  Can. 
Clark  v.  McKenzie,  7  Bush,  523 ;  (Q.  B.)  449 ;  Glalon  v.  Fairbairn,  30 
State  v.  Gibbs,  13  Fla.  55;  Heath,  Low.  Can.  Jurist,  323;  31  id.  48. 
Ex  parte,  3  Hill,  42;  Lewis  v.  Mar-  3  Lamar  v.  Wilkins,  28  Ark.  34. 
shal  Co.  (Com'rs),  16  Kans.  102 ;  Kis-  *  Freeman  v.  New  Haven  (Select- 
or v.  Cameron,  39  Ind.  488 ;  State  men),  34  Conn.  406 ;  Weeden  v. 
v.Stearns,  11  Neb.  104;  People  v.  Richmond  (Town  Council),  9  R  I. 
Hilliard,  29  111.  413;  Leigh  v.  State,  128. 

69  Ala.  261 ;  Clark  v.  Board  Examin-  &  State  v.  Hodgeman  Co.  (Com'rs), 
ers,  126  Mass.  282 ;  Luce  v.  Mayhew,  23  Kan.  264 ;  People  v.  Grand  Co. 
13  Gray,  83;  Smith  v.  Lawrence  (Com'rs),  6  Colo.  202;  State  v. 
(S.  Dak.,  June  19,  1891),  49  N.  W.  Stearns.  11  Neb.  104;  State  v.  Pea- 
Rep.  7.  cock,  15  Neb.  442;  Privett  v.  Ste- 
1  Davies  v.  McKeeby,  5  Nev.  369.  vens,  25  Kan.  275. 


§    179.]  MANDAMUS    TO    CANVASSERS    OF    ELECTIONS. 


219 


determine  whether  it  had  been  scratched,  the  court  refused 
to  review,  in  a  mandamus  proceeding,  the  action  of  the  can- 
vassing board  thereon.1  The  same  conclusion  was  reached 
relative  to  the  determination  of  the  board  as  to  whether  a 
certain  word  in  the  returns  was  forty  or  fifty.2  A  state- 
ment on  the  returns  void  on  its  face  may  be  rejected  by 
the  canvassers ; 3  and  they  should  reject  ballots  which  are 
void  on  their  faces,4  or  which  do  not  conform  to  the  plain 
provisions  of  the  law,5  and  they  may  correct  a  mere  cler- 
ical mistake  in  the  footings  which  is  apparent  on  the  face 
of  the  returns.6  A  mandamus  was  refused  to  compel  a  can- 
vassing board  to  count  certain  returns  as  the  election  re- 
turns  from  a  particular  town,  when  such  returns  did  not 
show  in  what  year  nor  in  what  town  the  election  was  held, 
and  when  they  did  not  appear  to  be  a  copy  of  the  record 
of  the  town  meeting.7  A  canvassing  board  must  decide 
whether  the  returns  submitted  to  them  are  genuine,  intelli- 
gible, and  properly  authenticated ; 8  and  it  has  been  consid- 
ered that  such  papers  must  bear  on  their  face  substantially 
whatever  the  law  has  prescribed  for  their  authentication  as 
such  returns;9  but  so  strong  is  the  disposition  to  confine 
the  action  of  canvassing  boards  to  the  mere  ministerial  du- 
ties of  counting  the  votes  and  certifying  the  result,  and  the 
unwillingness  to  accord  to  them  any  discretionary  duties, 
that  they  have  been  denied  the  right  to  reject  any  returns 
unless  they  are  absolutely  so  uncertain  in  their  form  and 
nature  that  they  cannot  be  known  as  such,  or  the  state- 
ment of  the  number  of  votes  received  by  any  person  or  ob- 
ject is  so  confused,  or  indefinite,  or  uncertain,  that  it  can- 

i  State  v.  Deane,  23  Fla.  121.  GDalton  v.  State,  43  Ohio  St.  652. 

2  State  v.  Bailey,  7  Iowa,  390.  7  Luce  v.  Dukes  Co.,  153  Mass. 

estate    v.   State    Canvassers,    36  108;  26  N.  E.  Rep.  419. 

Wis.  498.  8  State    v.    Marks,   74  Term.    12 ; 

*  Oglesby    v.    Sigman,    58    Miss.  State  v.  Gibbs,  13  Fla.  55. 

502_  9  Simon  v.  Durham.  10  Oreg.  52: 

•r>  People  v.  Onondaga  Co.  (Board  Luce  v.  Mayhew,  13  Gray,  83 ;  State 

Canvassers,  N.  Y.,  Dec.  29,  1891),  29  v.  Raudall,  35  Ohio  St.  64. 
N.  E.  Rep.  327. 


220  MANDAMUS    TO    CANVASSERS    OF    ELECTIONS.  [§   170. 

not  be  ascertained  with  sufficient  clearness.1     In  fact  it  is 
asserted,  that  the  return  must  be  an  absolute  nullity,  a  thing 
void  of  all  substance,  with  nothing  in  it,  to  allow  the  can- 
vassers to  reject  it;  that,  since  such  action  will  disfranchise 
the  voters  of  a  precinct,  the  courts  will,  as  far  as  it  may  be 
without  violence  to  the  clear  legislative  intent,  so  construe 
election  laws  as  to  avert  the  disfranchisement  of  the  legal 
electors  of  a  precinct  through  the  ignorance,  neglect  or 
fraud  of  election  officers.2    So  if  the  returns  upon  their  face 
are  sufficiently  authentic  to  show  that  they  are  genuine,3 
or  when  they  are  known   to  be  the  proper  returns,  the 
canvassers  cannot  pass  on  their  sufficiency,  and  they  must 
be  counted.4     The  latter  decisions  are  more  in  harmony 
with  the  necessities  of  the  case.  These  duties  are  performed 
by  men  unlearned  in  the  law,  and  during  the  hurry  of  an 
election;  and  though  a  certain  amount  of  discretion  is  al- 
lowed to  such  officers,5  yet  such  duties  are  considered  to  be 
ministerial  and  are  reviewable  by  the  writ  of  mandamus, 
and  the  least  discretion  possible  should  be  allowed  to  such 
officers,  and  the  true  intent  of  the  voters  should  be  sus- 
tained so  far  as  practicable.     Such  returns  are  not  to  be  in- 
validated because  they  include  more  than  the  law  requires.6 
The  additional  statements  must  be  rejected  as  surplusage.7 
Thev  can  never   be  used  to  contradict  the  return  itself.8 
When  it  was  sought  to  compel  the  secretary  of  state  to  re- 
turn certain  resolutions  and  papers,  sent  to  him  with  the 
election  returns,  and  to  cause  him  to  abstain  and  refrain 
from  allowing  such  papers  to  be  brought  before  the  state 
board  of  canvassers,  the  writ  was   refused,  because,  such 

i  State  v.  Bailey,  7  Iowa,  390;  Drew  v.  McLin,  16  Fla.  17;  State  v. 
Hudmon  v.  Slaughter,  70  Ala.  546;  Gibbs,  13  Fla.  55;  Long  v.  State,  17 
State  v.  State  Canvassers  (Board),     Neb.  60. 

17  Fla.  29.  b  state  v-  BerS-  76  Ma  136> 

2  Dalton  v.  State,  43  Ohio  St.  652.  '  Heatb.  Ex  parte.  3  Hill,  42 ;  State 

i  State  v.  Peacock,  15  Neb.  442.  v.  Berg,  76  Mo.  136 ;  Dalton  v.  State, 

4  State  v.  Marshall  Co.  (Judge),  7  43  Obio  St.  652. 

I<  iwa,  186.  8  State  v-  Stafce  Canvassers,  36  Wis. 

5  State  v.  Foster,  38  Ohio  St  599  ;     498. 


§  170.]  MANDAMUS    TO    CANVASSERS    OF    ELECTIONS.  221 

papers  not  being  proper  parts  of  the  return,  the  secretary 
of  state  had  no  official  duty  relative  to  them,  and  was  at 
liberty  to  burn  or  destroy  them  as  waste  paper.1  The  board 
of  county  canvassers  may  be  compelled  by  this  writ  to  re- 
turn the  election  returns  to  the  board  of  inspectors  for  the 
correction  of  certain  clerical  errors.2  When  it  appears  in  a 
mandamus  proceeding  that  certain  returns,  though  on  their 
face  proper  and  valid,  are  the  result  of  illegal  action  on  the 
part  of  the  canvassing  board  which  prepared  them,  by 
which  it  departed  from  its  sphere  as  a  ministerial  body,  and 
in  excess  of  its  jurisdiction  made  an  illegal  or  erroneous 
canvass,  the  superior  canvassing  board  may  be  required  to 
canvass  without  regard  to  such  returns.3  When  the  secre- 
tary of  a  board  of  canvassers  refuses  to  attest  its  action  as 
required  by  law,  it  may  appoint  a  secretary  pro  tempore  to 
do  so,  since  it  has  by  law  power  to  make  the  canvass  and 
certify  its  work.4  The  canvassing  board  cannot  reject  the 
returns  or  refuse  to  sign  a  certificate  of  election,  because 
illegal  votes  were  received  or  other  frauds  or  irregularities 
were  practiced  at  the  election.5  They  will  be  required  by 
this  writ  to  correct  clerical  errors  on  their  part,  which  are 
apparent  on  the  books  from  which  they  canvassed.6  Since 
their  duties  are  confined  to  counting  the  votes  and  certify- 
ing the  result,  they  cannot  refuse  to  count  the  votes  cast 
for  a  candidate  for  a  certain  office,  because  another  officer 
failed  to  include  such  office  in  his  proclamation  relative  to 
the  election.7     They  cannot  seek  evidence  aliunde  to  sus- 

•  People  v.  Rice  (N.  Y.,  Dec.  29,        s  Lewis  v.  Marshall  Co.  (Com'rs), 

1891),  29  N.  E.  Rep.  355.  16  Kans.  102;  Com.  v.  Emminger. 

2  People  v.  Onondaga  Co.  (Bd.  Co.  74  Pa.  St.  479 ;  Dalton  v.  State,  43 
Com'rs,  N.  Y.,  Dec.  29,  1891),  29  N.  Ohio  St.  652 ;  Burke  v.  Monroe  Co. 
E.  Rep.  361.  (Sup'rs),   4  W.   Va.    371 ;    Peck  v. 

3  People  v.  State  Canvassers  (Bd.,  Weddell,  17  Ohio  St.  271 ;  Privett  v. 
N.  Y.,  Dec.  29,  1891),  29  N.  E.  Rep.  Stevens,  25  Kans.  275 ;  Smith  v. 
355.  In  this  case  allegations  to  this  Lawrence  (S.  Dak.,  June  19,  1891), 
effect  were  contained  in  the  peti-  49  N.  W.  Rep.  7. 

tion,  aud  they  were  not  denied,  nor  « State  v.  Hill,  20  Neb.  119. 

even  alluded  to  in  the  return.  ~  Morgan  v.  Pratt  Co.  (Com'rs),  24 

4  People  v.  State  Canvassers  (Bd.,  Kans.  71. 
N.  Y.,  Dec.  29,  1891),  supra. 


222  MANDAMUS    TO    CANVASSERS    OF   ELECTIONS.  [§  180. 

tain  or  overthrow  the  returns.1  Their  action  is  to  be  care- 
fully confined  to  an  examination  of  the  papers  before  them, 
and  a  determination  of  the  result  therefrom  in  the  light  of 
such  facts  of  public  notoriety  connected  with  the  election 
as  every  one  takes  notice  of,  and  which  may  enable  them 
to  apply  such  ballots  as  are  in  any  respect  imperfect  to 
the  proper  candidates  or  officers  for  which  they  are  in- 
tended, provided  the  intent  is  sufficiently  indicated  by  the 
ballot  in  connection  with  such  facts,  so  that  extraneous  evi- 
dence is  not  necessary  for  this  purpose.2 

§  180.  Will  any  evidence  be  received  except  the  re- 
turns, when  a  mandamus  is  asked  for  against  the  can- 
vassers of  an  election. —  Since  the  office  of  a  mandamush 
to  compel  an  officer  to  do  what  was  his  duty  without  the 
ma?idamt(s,  it  is  claimed  to  be  a  universal  rule  that  a  court 
in  such  a  proceeding  will  not  hear  evidence  of  any  fact, 
affecting  a  return,  which  the  canvassers  are  called  upon  to 
canvass  and  abstract.3  It  would  seem  to  be  inconsistent  to  ad- 
judge officers  as  derelict  in  duty,  when  such  duty  proceeded 
from  matters  which  were  not  within  their  knowledge,  since 
they  were  prevented  from  considering  anything  but  the 
papers  before  them  and  matters  of  general  notoriety.  In 
one  case,  where  it  appeared  that  an  alteration  had  been 
made  in  the  return  of  the  votes,  but  the  canvassers  did  not 
know  whether  such  alteration  was  made  before  or  after  they 
received  the  returns,  the  court  heard  evidence  on  the  sub- 

i  State  v.  State  Canvassers,  36  v.  Board  of  Examiners,  126  Mass. 
Wis.  498 ;  Dalton  v.  State,  43  Ohio  282,  where  a  board  of  canvassers 
St.  652.  In  State  v.  Kavanagh,  24  were  not  allowed  to  count  votes 
Neb.  506,  the  canvassing  board  re-  cast  for  L.  Clark  in  favor  of  Leon- 
ceived  affidavits  and  oral  testimony  ard  Clark,  because  they  were  con- 
concerning  an  alteration  of  the  re-  fined  to  the  record  of  the  votes 
turns  and  then  rejected  them,  and  returned  and  laid  before  them.  In 
were  sustained  in  such  action  by  similar  cases  another  court  decided 
the  court.  that  the  action  of  the  canvassing 

2Cooley's  Const  Lira.,  623;  State  board    would    not    be    controlled. 

v.  Foster,  38  Ohio  St.  599 ;  State  v.  State  v.  Foster,  38  Ohio  St   599 ; 

Williams,  95  Mo.  159 ;  State  v.  Dins-  Dalton  v.  State,  43  Ohio  St.  652. 
more,  5  Neb.   145.     Contra,  Clark        3  Dalton  v.  State,  43  Ohio  St  652. 


§  181.]  MANDAMUS    TO    CANVASSERS    OF    ELECTIONS.  223 

ject  and  instructed  the  canvassers  accordingly.1  This  is  said 
to  be  the  only  case  where  this  has  ever  been  done.2  Where 
a  mandamus  was  asked  to  compel  the  canvass  of  over  twenty- 
nine  hundred  votes  cast  in  a  county  election,  and  the  re- 
turn was  that  the  vote  was  fraudulent,  and  that  there  were 
only  about  eight  hundred  voters  in  the  county,  the  court 
refused  the  writ,  because  it  knew,  as  a  matter  of  general 
notoriety,  that  the  return  was  true.3  Where  it  appeared 
on  the  undisputed  facts  that  the  relator  was  ineligible  to 
the  office  for  which  by  the  writ  of  mandamus  he  sought  a 
certificate  of  election,  the  petition  was  overruled.  The 
court  admitted  that  the  returning  board  had  no  right  to 
inquire  into  the  eligibility  of  a  candidate,  but  asserted  that 
it  would  not  aid  in  carrying  out  an  unlawful  proceeding, 
and  that  a  relator  must  always  show  a  good  title.4  This 
case  is  in  harmony  with  the  general  rule,  because  the  facts 
were  undisputed. 

§  181.  A  mandamus  will  issue  to  compel  the  proper 
officer  to  declare  the  result  of  the  election. —  When  it  is 
the  duty  of  an  officer  to  declare  the  result  of  the  election, 
he  may  be  required  to  do  so,  and  will  not  be  allowed  to 
confine  himself  to  a  declaration  of  the  votes  cast  for  each 
proposition.5  Where,  in  case  of  a  tie  vote,  the  law  requires 
the  judge  of  the  election  to  determine  by  lot  which  of  the 
two  candidates  is  elected,  he  will  be  required  to  perform 
such  duty,  even  though  the  relator  asked  him  not  to  do  so, 
since  the  law  fixes  his  duties.6  When  an  appeal  is  taken 
from  a  canvassing  board  to  an  appellate  canvassing  board, 
whose  members  are  equally  divided  on  the  question  of 
affirming  the  action  of  the  lower  board,  such  a  vote  is  an 
affirmance  of  the  action  of  the  lower  board,  and  such  ap- 
pellate board  may  be  required  by  a  writ  of  mandamus  to 

i  State  v.  Garesche,  65  Mo.  480.  5  Steward  v.  Peyton,  77  Ga.  668 ; 

2Dalton  v.  State,  43  Ohio  St.  652.  State  v.  Malcolm,  77  Ga.  671. 

s  Hall  v.  Stewart,  23  Kans.  396.  6  Johnston  v.  State,  128  Ind.  16; 

*  People  v.  State  Canvassers  (Bd.,  27  N.  E.  Rep.  422. 
N.  Y.,  Dec.  29,  1891),  29  N.  E.  Rep. 
345. 


224       MANDAMUS    TO    CANVASSERS    OF    ELECTIONS.       [§§  182-184. 

issue  the  certificate  required  from  them  in  case  of  the  af- 
firmance of  the  action  of  the  lower  board.1 

§  1S2.  Mandamus  will  issue  to  the  canvassing  board, 
though  they  have  already  given  another  the  certificate. 

The  fact  that  a  canvassing  board  has  already  declared  the 
result  and  issued  a  certificate  of  election  to  another  person 
is  no  adequate  return  to  an  alternative  writ  of  mandamus 
to  canvass  the  returns  properly  and  to  declare  the  proper 
result,  when  returns  have  been  improperly  counted  or  im- 
properly rejected.2  Such  action  does  not  oust  the  incum- 
bent, and  is  often  necessary  to  put  the  relator  in  a  position 
to  contest  his  rights. 

§  183.  The  peremptory  writ  will  specifically  direct  the 
canvassing  board  what  to  do. —  Before  issuing  the  per- 
emptory writ  in  such  cases,  the  court  will  ascertain  the 
specific  duty  of  the  canvassing  board,  and  will  order  its 
performance,3  will  order  them  to  count  votes  which  they 
failed  to  count,  and  to  reject  votes  which  they  ought  not  to 
have  counted,4  and  to  give  the  certificate  to  the  person  ap- 
pearing on  the  face  of  the  votes  to  be  elected.*  It  is  no 
objection  to  a  mandamus  to  canvass  the  returns,  that  the 
office  affected  is  that  of  a  member  of  congress,  since  the 
duty  of  canvassing  those  votes  is  imposed  on  the  canvassing 
board  by  the  law  of  the  state.6 

§  184.  Mandamus  not  lie  when  another  remedy  or  the 
hoard  had  discretion  or  the  election  was  illegal. —  Aman- 

i  Elliott,  Ex  parte,  33  S.  C.  602.  Oglesby  v.  Sigman,  58  Miss.  502 ; 

2  State      v.      State      Canvassers  Magee  v.  Calaveras  Co.  (Sup'rs),  10 

(Bd.),   17   Fla.   29;    Brown  v.    Bd.  Cat  376) ;  because  another  had  been 

Com'rs,  38  Kans.  436;  Ellis  v.  Bris-  commissioned  (Myers  v.  Chalmers, 

tol  Co.  (Com'rs),  2  Gray,  370 ;  Peo-  60  Miss.  772) ;  because  the  certificate 

pie  v.  Eives,  27  111.  242 ;  People  v.  was  given  to  one  who  was  rilling 

Hilliard,   29   111.   413;   Johnston  v.  the  office  (State  v.  Rodman,  43  Mo. 

State  (Ind.,  April  8,   1891),  27  N.  E.  254). 

Pep.   422;  Smith  v.   Lawrence  (S.  3  State  v.  Williams,  95  Mo.  159. 

Dak.,  June  17,  1891).  49  N.  W.  Rep.  *  State  v.  Berg,  76  Mo.  136. 

7.     Even   though   the  party  com-  5  Easier  v.  Cameron,  39  Ind.  488. 

missioned  has  entered  upon  thedis-  6  State  v.  Alachua  Co.  (Bd.  Can.), 

charge  of  the  duties  of  the  office  17  Fla.  9. 
(State  v.  Howe,  28  Neb.  618.  Contra: 


§  185.]         MANDAMUS   TO   CANVASSERS    OF    ELECTIONS;  225 

damns  is  allowed  to  canvassers  of  elections  because  it  is 
considered  that  there  is  no  other  adequate  remedy.  A  qxio 
warranto  was  asserted  not  to  be  an  adequate  remedy,  be- 
cause such  a  defense  in  a  mandamus  proceeding  obtains 
only  when  such  remedy  is  attainable  against  the  party 
against  whom  the  mandamus  is  sought,  and  while  the  man- 
damus would  run  against  the  canvassing  board,  the  quo 
warranto  would  be  against  the  party  declared  to  be  elected.1 
"Where  a  remedy  considered  adequate  is  provided  by  stat- 
ute, as  by  contest  or  appeal,  the  writ  will  be  refused.2 
When  the  election  officers  have  a  discretion  in  the  matter, 
or  are  authorized  to  determine  all  contests  and  to  decide  on 
the  qualifications  of  the  parties,  their  action  in  the  premises 
will  not  be  reviewed  by  this  writ.3  A  mandamus  will  not 
lie  to  canvass  votes  cast  at  an  election  for  an  office,  which 
was  then  legally  filled,  and  when  no  election  therefor  was 
proper ; 4  nor  when  such  election  was  held  without  authority 
of  law.5 

§  185.  By  mandamus  the  canvassing  board  may  be  re- 
quired to  reconvene  and  do  their  duty,  though  they  have 
adjourued  siue  die. —  Though  the  board  of  canvassers  have 
counted  the  votes,  announced  the  result  and  adjourned  sine 
die,  they  may  be  compelled  by  a  mandamus  to  re-assemble 
and  recount  the  votes,  if  it  appears  that  upon  the  first  can- 
vass they  made  an  erroneous  count.6     The  board  continues 

1  People  v.  Greene  Co.  (Sup'rs),  12  Scarborough,  Ex  parte  (S.  C,  Jan. 
Barb.  217.  26,  1891),  12  S.  E.  Rep.  666. 

2  State  v.  Stewart,  26  Ohio  St  4  Peters  v.  Board  State  Canvass- 
216 ;  State  v.  Smith,  104  Mo.  661 ;  ers,  17  Kans.  365. 

Mackey,   Ex  parte,   15  S.  C.   322;  5  State  v.   Whitteinore,   11   Neb. 

State  v.  Berry,  14  Ohio  St  315.     A  175. 

contest    in    Nebraska  is  not  con-  fi  Lewis  v.  Marshall  Co.  (Com'rs), 

sidered  to  be  an  adequate  remedy.  16  Kans.  102 ;  State  v.  Berg,  76  Mo. 

State  v.  Stearns,  11  Neb.  104.  136;  State  v.  Stearns,  11  Neb.  104; 

3  Grier  v.  Shackleford,  3  Brev.  State  v.  Peacock,  15  Neb.  442 ;  State 
491;  Vicksburg  (Mayor)  v.  Rain-  v.  Hill.  20  Neb.  119;  State  v.  Gibbs, 
water,  47  Miss.  547 ;  State  v.  Baton  13  Fla.  55 ;  State  v.  Howe,  28  Neb. 
Rouge  (Selectmen),  25  La,  An.  310 ;  618 ;  44  N.  W.  Rep.  874 ;  Johnston 
State  v.  Strong,  32  La.  An.   173;  v.  State,  128  Ind.  16;  27  N.  E.  Rep. 

15 


226 


MANDAMUS   TO   CANVASSERS   OF   ELECTIONS. 


[§  185. 


in  existence  till  its  whole  duty  is  performed.1  "Where  in  a 
similar  case  the  county  board  of  supervisors  were  ex  officio 
the  board  of  canvassers,  and  it  was  objected  that  the  can- 
vassing board  could  not  reconvene  because  the  term  of  a 
member  of  the  board  of  supervisors  had  expired  and  he  had 
gone  out  of  office,  the  court  held  that  he  continued  to  be  a 
member  of  the  canvassing  board  till  it  had  discharged  its 
duties,  and  that  a  mandamus  would  lie  to  compel  him  to  act 
as  a  member  thereof.2  Where  in  such  a  case  a  rule  to  show 
cause  or  an  alternative  writ  of  mandamus  is  issued,  it  is 
proper  that  the  court  should  issue  an  order  inhibiting  the 
board  of  canvassers  from  adjourning.3  If,  however,  the 
board  is  allowed  to  be  in  session  only  a  certain  number  of 
days,  which  have  already  passed,  or  if  the  board  has  been 
abolished  by  law,  no  writ  of  mandamus  will  issue  to  it,  since 
the  act  called  for  is  no  longer  a  duty  imposed  upon  the 
members  thereof  by  law.4  "When,  however,  the  duty  can 
be  discharged  by  their  successors,  the  writ  may  be  issued  to 
such  successors.5 


422.  Contra,  Oglesby  v.  Sigman,  58 
Miss.  502 ;  People  v.  Greene  (Corn'rs), 
12  Barb.  217. 

i  People  v.  Schiellein,  95  N.  Y. 
124 ;  State  v.  County  Judge,  7  Iowa, 
186 ;  Simon  v.  Durham,  10  Oreg.  52. 

2  Srnitli  v.  Lawrence  (S.  Dak.,  June 
19,  1891),  49  N.  W.  Rep.  7. 

3  Alderson  v.  Corn'rs,  31  W.  Va. 
633. 


<  Mackey,  Ex  parte,  15  S.  C.  322 ; 
State  v.  Gibbs,  13  Fla.  55.  Where  a 
board  was  ordered  to  reconvene, 
one  reason  stated  for  such  order 
was,  that  the  board  had  finally  ad- 
journed before  the  law  required 
them  to  do  so,  not  having  properly 
discharged  their  duties.  State  v. 
Berg,  76  Mo.  136. 

5  Clark  v.  McKenzie,  7  Bush,  523. 


CHAPTEK  14 

MANDAMUS  TO  COURTS. 

:  186.     Mandamus  lies  to  courts  as  to  ministerial  acts. 

187.  Mandamus  does  not  lie  to  control  the  judicial  discretion  of  a  court 

188.  Discretion  of  a  court  will  be  reviewed  when  it  is  guided  by  fraud, 

passion,  prejudice  or  adverse  interest. 

189.  Mandamus  to  courts  to  compel  judicial  action,  but  not  to  con- 

trol it. 

190.  Mandamus  lies  to  make  a  judge  sign  a  bill  of  exceptions. 

191.  Application  under  the  statute  of  Westminster  to  compel  the 

signing  of  a  bill  of  exceptions. 

192.  The  bill  of  exceptions  must  be  presented  to  the  judge  within  the 

proper  time. 

193.  No  one  can  be  required  to  sign  a  bill  of  exceptions  except  an 

officer. 

194.  Cases  where  a  mandamus  to  sign  a  bill  of  exceptions  will  be  re- 

fused. 

195.  Mandamus  to  restore  attorneys  who  have  been  disbarred. 

196.  Mandamus  not  granted  to  review  interlocutory  proceedings  of 

the  courts. 

197.  Exceptions  to  the  rule. 

198.  Mandamus  often  granted  in  Louisiana  to  review  interlocutory 

orders. 

199.  Interlocutory  orders  of  courts  may  in  Alabama  be  reviewed  by 

the  writ  of  mandamus. 

200.  Interlocutory  orders  of  courts  may  in  Michigan  be  reviewed  by 

writs  of  mandamus. 

201.  Mandamus  cannot  take  the  place  of  an  appeal  or  writ  of  error. 

202.  Mandamus  will  not  always  lie,  though  appeal  or  writ  of  error 

not  allowable. 

203.  Mandamus  lies  to  compel  a  court  to  try  a  cause,  when  it  refuses 

to  do  so  on  the  erroneous  decision  that  it  has  no  jurisdiction. 

204.  When  a  court  for  any  cause  improperly  refuses  to  proceed  in  a 

cause,  mandamus  lies  to  compel  action. 

205.  Disputed  question  whether  appeal  or  mandamus  lies  upon  an 

erroneous  dismissal  of  an  appeal  by  the  lower  court 

206.  When  an  appeal  is  wrongfully  dismissed  for  matters  occurring 

subsequent  to  its  docketing,  it  may  be  reinstated  on  the  docket 
by  a  mandamus. 


228  MANDAMUS  TO   COURTS.  [§§  186,  187. 

§  207.  When  a  mandamus  lies  to  compel  a  court  to  hear  a  cause,  when 
it  has  declined  to  hear  it  by  reason  of  an  erroneous  decision 
on  some  preliminary  question. 

208.  Mandamus  to  compel  the  allowance  of  an  appeal. 

209.  Mandamus  will  not  lie  to  a  court  when  there  is  another  remedy. 

210.  Litigants  cannot  by  agreement  create  duties  which  the  court 

may  be  compelled  by  mandamus  to  perform. 

211.  Special  instances  where  a  mandamus  was  not  required  or  would 

have  been  inefficacious. 

212.  Mandamus  to  justices  of  the  peace. 

§  186.  Mandamus  lies  to  courts  as  to  ministerial  acts. — 

The  writ  of  mandamus  has  been  used  most  extensively  to 
control  and  correct  the  action  of  inferior  courts.  It  is  used 
not  only  to  restrain  their  excesses,  but  also  to  quicken  their 
negligence  and  obviate  their  denial  of  justice.1  "When  a 
duty  is  imposed  by  law  upon  a  court,  a  mandamus  from  a 
higher  court  is  the  proper  means  to  compel  the  discharge 
of  such  duty.2  When  such  duty  is  so  plain  in  point  of  law 
and  so  clear  in  matter  of  fact  that  no  element  of  discretion 
is  left  as  to  the  precise  mode  of  its  performance,  such  duty 
is  ministerial,  and  a  writ  of  mandamus  to  compel  the  per- 
formance of  such  duty  will  specify  the  exact  mode  of  per- 
formance.3 

§  187.  Mandamus  does  not  lie  to  control  the  judicial 
discretion  of  a  court. —  As  to  all  acts  which  are  judicial 
in  their  nature,  where  the  party  or  tribunal,  at  whose  hands 
performance  is  sought,  is  required  to  decide  questions  of 
law  or  to  ascertain  matters  of  fact,  the  writ  of  mandamus 
will  not  issue,  since  it  is  never  used  to  review  or  reverse  ju- 
dicial action;4  nor  to  correct  the  errors  of  the  court  in  the 

1  3  Black.  Com.  110 ;  State  v.  4  Morgan,  Ex  parte,  2  Chit.  250 ; 
Kirke,  12  Fla.  278 ;  Virginia  v.  Oneida  C.  Pleas  (Judges)  v.  People, 
Rives,  100  U.  S.  313.  18  Wend.  79 ;  Lewis  v.  Barclay,  35 

2  Mason  Co.  (Bd.  Sup'rs)  v.  Min-  Cal.  213 ;  People  v.  Weston,  28  Cal. 
turn,  4  W.  Va.  300 ;  State  v.  Or-  639 ;  Osborn  v.  Clark,  1  Ariz.  397 ; 
phans'  Ct.  (Judge),  15  Ala.  740 ;  Mooney  v.  Edwards,  51  N.  J.  L.  479 ; 
Manor  v.  McCall.  5  Ga.  522.  Little  v.  Morris,  10  Tex.  263 ;  Stout 

3  State  v.  Williams,  69  Ala.  311 ;  v.  Hopping,  17  N.  J.  L.  471 ;  Koon, 
Mooney  v.  Edwards,  51  N.  J.  L.  479.  Ex  parte,   1  Denio,   644 ;  State  v. 


§  187.]  MANDAMUS   TO   COUKTS.  229 

exercise  of  its  judicial  discretion ; !  nor  to  control  the  exer- 
cise of  its  discretion.2  On  the  ground  that  the  action  of 
the  court  was  a  matter  of  judicial  discretion,  the  writ  of 
mandamus  has  been  refused :  to  compel  a  judge  or  the  court 
to  extend  the  time  wherein  creditors  may  present  their 
claims  to  the  probate  court ; 3  to  refer  cases  to  a  particular 
master  in  chancery ; 4  to  strike  out  a  condition  imposed  on 
setting  aside  a  ca.  sa.  for  irregularity,  that  the  defendant 
should  stipulate  not  to  bring  an  action  for  false  imprison- 
ment ; 5  to  rehear  an  appeal ; h  to  allow  an  appeal  from  a  jus- 
tice of  the  peace  upon  a  failure  to  appeal  within  the  time 
limited  by  law ; 7  to  grant  an  injunction ; 8  to  punish  for  a 
contempt,  since  he  must  be  the  best  judge  whether  a  con- 
tempt was  committed  against  the  court ; 9  to  issue  a  writ  of 
habeas  corpus',  10  to  issue  a  warrant  to  arrest  a  French  officer, 
who  had  left  his  ship,  as  a  deserter,  under  the  convention 
with  the  United  States ; u  to  grant  a  warrant  of  restitution 
in  a  case  of  forcible  entry  and  detainer; ,2  to  give  a  particu- 
lar construction  to  an  act  of  parliament ; 13  to  vacate  an  order 
staying  proceedings  on  execution,  when  the  property  had 
alreadv  been  levied  on  in  another  suit;  u  to  receive  certain 

Orphans'   Court  (Judges),   15  Ala.  5  Gilbert  v.  Niagara  Co.  (Judge), 

740 ;  Milner,  Ex  parte,  6  Eng.  L.  &  3  Cow.  59. 

E.  371 ;  Reg.   v.   Bristol  (Just),   28  6  Becke,  Ex  parte,  8  B.  &  Ad.  704. 

Eng.  L.  &  E.  160;  Q.  v.  Middlesex  'Vincent  v.  Bowes,  78  Mich.  315. 

(Just.),  2  Q.  B.  D.  516.  8  Hayes,  Ex  parte,   26  Ark.  510 ; 

1  Smyth  v.  Titcomb,  31  Me.  272 ;  McMillen  v.  Smith,  26  Ark.  613 ; 
Shandies,  Ex  parte,  66  Ala.  134;  State  v.  Judge  Sixth  Dist.,  28  La. 
Sankey  v.  Levy,  69  Cal.  244 ;  State  An.  905. 

v.   Powell,   10  Neb.   48 ;  People  v.  9  Chamberlain,  Ex  parte,  4  Cow. 

Dutchess    C.    Pleas     (Judges),    20  49.    Contra,  Ortman  v.  Dixon,  9  Cal. 

Wend.   658;  Hollon    Parker,   Peti-  23. 

doner,  131  U.  S.  221 ;  Dunklin  Co.  10  People  v.  Russell,  46  Barb.  27 ; 

v.  Dunklin  Dist  Ct,  23  Mo.  449.  Opdyke,  Ex  parte,  62  Ala.  68. 

2  Thornton  v.  Hoge.  84  Cal.  231 ;  U  United  States  v.  Lawrence,  3 
White  v.   Buskett,    119    Ind.  431 ;  Dal.  42. 

Hayes,    Ex    parte,    26  Ark.    510 ;       12  Q.  v.  Harland,  8  Ad.  &  E.  826. 
McMillen  v.  Smith,  26  Ark.  613.  13  Sturgis  v.  Joy,  2  El.  &  Bl.  739. 

3  People  v.  Monroe  Co.  (Probate  l4  People  v.  New  York  Sup.  Court. 
Judge),  16  Mich.  204.  19  Wend.  701. 

<  People  v.  Williams,  55  111.  17a 


230  MANDAMUS   TO   COURTS.  [§  187. 

evidence,  which  had  already  been  rejected  in  the  trial  of  the 
cause ; *  to  grant  a  particular  judgment,  to  set  aside  a  ver- 
dict, or  to  grant  a  new  trial ; 2  to  conform  in  an  equity  case 
to  the  equity  rules  as  to  the  time  to  appear  and  answer, 
where  such  conformity  would  work  injustice;3  to  allow  a 
motion  to  be  permitted  to  intervene  in  a  case ; 4  to  hear 
charges  against  a  justice  of  the  peace ; 5  to  issue  an  order 
for  taking  the  testimony  of  a  prisoner ; fi  to  vacate  its  rule 
setting  aside  an  execution ; 7  to  correct  his  decision  on  the 
question  of  costs ; 8  to  accept  the  bond  of  a  sheriff,  when 
it  had  alreadv  declared  the  office  to  be  vacant ; 9  to  hear  an 
application  for  a  habeas  corpus  when  he  had  already  heard 
the  party  on  an  application  for  bail ; 10  to  make  him  enter 
judgment  on  one  of  three  verdicts,  none  of  which  covered 
all  the  points,  and  when  the  jury  was   finally  discharged 
and  a  mistrial  was  entered ; "  to  direct  his  judgment  on  an 
application  for  relief  from,  or  alteration  in,  a  tax  assess- 
ment ;  B  to  receive  defendant's  plea ; 13  to  discharge  an  in- 
solvent debtor  who  was  out  on  bail,  because  his  creditor  failed 
to  pay  $2  a  week  for  his  support ; 14  to  sign  a  judgment 
after  a  new  trial  had  been  granted ; 15  to  set  aside  a  default 
and  inquest  thereon;18  to  allow  double  pleading; 17  to  decide 
the  amount  of  bail  which  is  proper  in  the  case ; 18  to  compel 
the  allowance  of  a  change  of  venue; 19  to  proceed  according 

iKing  v.  Cambridgeshire  (Just),  10  Campbell,  Ex  parte,  20  Ala  89. 

1  D.  &  R.  325.  u  Henry,  Ex  parte,  24  Ala.  638. 

2Squierv.  Gale,  6  N.  J.  L.  157;  12  Miltenberger  v.  St.  Louis  County 

People  v.   Wayne    Cir.    Court,  20  Court,  50  Mo.  172. 

Mich.  220.  13  Anon.,  7  N.  J.  L.  160. 

3Poultney  v.  La  Fayette  (City),  14  State  v.  Court  Common  Pleas, 

12  Pet.  472.  38  N.  J.  L.  182. 

4  People  v.  Sexton,  37  Cal.  532.  "State  v.  Watts.  8  La  76. 

5  Johnson,  Ex  parte,  3  Cow.  371.  "Roberts,  Ex  parte,  6  Pet.  216. 

e  Willard  v.   Superior  Court,   82  17  Davenport,  Ex  parte,  6  Pet  661. 

Cal.  456.  ls  Taylor,  Ex  parte,  14  How.  3. 

7  Vanderveer  v.  Conover,  16  N.  J.  "The  writ  is  refused  in  such  cases 
L.  271.  because  the   judicial  discretion  of 

8  State  v.  Kenosha  Circuit  (Judge),  the  court  is  involved  or  because  the 
3  Wis.  809.  matter  can  be  corrected  on  appeal. 

9  State  v.  Bowen,  6  Ala  511.  People  v.  McRoberts,  100  Dl  458 ; 


§  188.]  MANDAMUS   TO   COURTS.  231 

to  its  first  decision,  which  it  altered  during  the  same  term 
of  court ; *  to  vacate  an  order  opening  a  judgment  and  al- 
lowing the  defendant  to  plead  a  discharge  in  bankruptcy;2 
to  allow  costs  in  a  case  of  damages  which  it  had  refused  to 
do ; 3  to  enter  up  a  judgment  on  a  verdict  which  was  re- 
turned to  the  jury  to  further  consider,  who  afterwards 
reported  that  they  could  not  agree  and  were  discharged ; 4 
to  allow  an  appeal  by  a  curator  and  to  certify  the  case  up 
without  his  giving  a  bond  as  ordered,  because  it  did  not 
appear  that  the  adverse  party  had  asked  for  a  bond,  when 
by  law  the  court  could  require  it , 5  to  enter  a  decree  upon 
a  report  of  a  referee ; 6  to  increase  the  tax  for  school  pur- 
poses ; 7  to  reinstate  a  cause  on  the  docket ; 8  to  review  its 
action  in  dismissing  proceedings  for  contempt  after  hear- 
ing the  evidence ; 9  to  review  any  decision  involving  facts ; 10 
to  punish  parties  for  disobeying  a  subpoena  duces  tecum;  u 
to  grant  a  rehearing  in  an  equity  case ; 12  to  reverse  its  ac- 
tion in  extending  the  time  for  pleading ; 13  and  to  proceed 
in  the  trial  of  a  cause,  when  it  had  been  advised  that  an 
injunction  had  been  issued  commanding  the  parties  to  such 
cause  to  take  no  further  proceedings  therein.14 

§  1S8.  Discretion  of  a  court  will  be  reviewed  when  it  is 
guided  by  fraud,  passion,  prejudice  or  adverse  interest. 
Though  the  rule  is  general  that  the  action  of  the  court,  in 

State    v.   Washburn,   22    Wis.   99;  7  Union  County  Court  v.  Robin- 
People  v.  Sexton,  24  Cal.  78.     The  son,  27  Ark.  116. 
writ    has    been    granted    in    such  8  Hempstead  County  v.  Grave,  44 
cases,  because  the  act  of  the  court  Ark.  317. 

was^  considered  to    be  ministerial  9Heilbron  v.  Superior  Court,  72 

(Coit  v.  Elliott,  28  Ark.  294 ;  Ken-  Cal.  96 ;  State  v.   Horner,   16  Mo. 

nedy  v.  Woolfolk,  1  Overt.  453),  or  Ap.  191. 

an  appeal  would  be  too  late.     Dan-  i»  Oneida  C.  Pleas  (Judges)  v.  Peo- 

ville  v.  Blackwell,  80  Va.  38.  pie,  18  Wend.  79. 

1  Foster  v.  Redfield,  50  Vt.  285.  "  Burtis,  Ex  parte,  103  U.  S.  238. 

2Elkins  v.  Athearn,  2  Denio,  191.  i2Gredham,  Ex  parte,  82  Ala.  359. 

s  Chase  v.  Blackstone  C.  Co.,  10  13  Opdyke,  Ex  parte,  62  Ala.  68. 

Pick.  244.  H  State  v.  Orphans'  Court  (Judge), 

4  State  v.  Clementson,  69  Wis.  628.  15  Ala.  740 ;  People   v.  Muskegon 

5  Potter  v.  Todd,  73  Mo.  101.  Cir.  Judge,  40  Mich.  63 ;  People  v. 
e  Ludluni  v.  Fourth  Dist.   Ct,  9  Gilnier,  10  111.  242. 

CaL7. 


232  MANDAMUS   TO   COURTS.  [§  189. 

a  matter  calling  for  the  exercise  of  its  judgment  or  discre- 
tion, will  not  be  reviewed  or  corrected  by  this  writ,  yet  the 
courts  will  not  adhere  thereto  when  it  is  apparent  that  the 
action  of  the  court  proceeds  from  fraud,  passion,  prejudice 
or  adverse  interest ;  but  such  facts  must  be  very  clearly 
proved  before  a  court  will  interfere  by  this  writ.1 

§  189.  Mandamus  to  courts  to  compel  judicial  action, 
but  not  to  control  it. —  Judges  and  courts,  like  all  other 
officers  and  tribunals,  may  be  compelled  by  the  writ  of 
mandamus  to  perform  any  ministerial  act  upon  refusal  so 
to  do.  So  when  any  duty  devolves  upon  them  which  calls 
for  judgment  and  discretion,  they  cannot  ignore  it,  but  may 
be  compelled  by  this  writ  to  take  cognizance  thereof  and 
come  to  some  conclusion  thereon,  but  the  writ  will  in  no 
manner  direct  the  form  or  nature  of  such  conclusion.  The 
writ  has  been  considered  to  be  proper :  to  make  a  court  hold 
a  term  of  court ; 2  to  compel  the  appointment  of  a  guardian 
to  defend  an  adult  non  compos  who  has  been  sued ; 3  to  re- 
verse the  action  of  the  court  in  refusing  to  allow  a  sheriff 
to  amend  his  return,  pending  an  action  against  him  for 
judgment  thereon,  which  is  collateral  to  the  suit  wherein 
his  return  was  made  ;4  to  compel  the  granting  of  letters  of 
administration  to  A.,  the  refusal  so  to  do  not  being  either 
an  interlocutory  or  a  final  judgment;5  to  receive6  and 
enter7  the  verdict  of  the  jury;  to  enter  a  judgment  on  the 
verdict,  when  the  court  cannot  on  its  own  motion,8  or  other- 
wise,9 set  it  aside  and  grant  a  new  trial;  to  enter  judgment 
on  an  alternative  verdict  according  to  the  election  of  the 

i  Union  Colony  v.  Elliott,  5  Colo.  4  Casky  v.  Haviland,  13  Ala.  314. 

371 ;  Schlaudecker  v.  Marshall,  72  5  Brennan  v.  Harris,  20  Ala  185. 

Pa.  St.  200 ;  Vincent  v.  Bowes,  78  6  Com.    v.    Norfolk    (Sessions),  5 

Mich.  315 ;    Knarr's    Petition,   127  Mass.  434 ;  State  v.  Knight,  46  Mo. 

Pa.  St.  554 ;  State  v.  Kirke,  12  Fla.  83 ;  Com.  v.  Middlesex  (Sessions),  9 

278 ;  Virginia  v.   Rives,  100  U.  S.  Mass.  388. 

313;  Manor  v.  McCall,  5  Ga,  522.  ?Munkers  v.  Watson,  9  Kans.  668. 

See  ante,  §§  40,  41,  where  the  ques-  8  Lloyd  v.  Brinck,  35  Tex.  1. 

tion  is  fully  considered.  9  State   v.    Adams,   76   Mo.    605 ; 

2  Trapnall,  Ex  parte,  6  Ark.  9.  Lloyd  v.  Brinck,  35  Tex.  1 ;    Cor- 

3  Northington,  Ex  parte,  37  Ala.  tleyou  v.  Ten  Eyck,  22  N.  J.  L.  45 ; 
496.  Brooke  v.  Ewers,  1  Stra.  113 ;  Peo- 


§  ISO.]  MANDAMUS   TO   COURTS.  233 

plaintiff;1  to  enter  judgment  in  a  criminal  case  and  pass 
sentence  accordingly;2  to  compel  the  court  to  make  an 
entry  on  its  minutes  of  its  refusal  to  admit  to  probate  the 
certified  will  of  a  non-resident,  and  to  grant  letters  testa- 
mentar}^  to  the  executor ; 3  to  enter  judgment  on  the  report 
of  a  referee  assessing  damages  on  the  dissolution  of  an  in- 
junction;4 to  compel  the  judge  to  sign  the  judgment,5  to 
execute  his  sentence 6  and  to  carry  his  decree  into  effect, 
when  the  appeal  bond  given  was  not  sufficient  to  entitle 
the  appellant  to  a  supersedeas,  though  the  court  granted  it ; 7 
to  compel  a  court  to  amend  its  records  in  accordance  with 
the  facts,8  which  may  be  corrected  though  the  case  is  ap- 
pealed, prior  to  final  judgment  in  the  appellate  court ; 9  to 
correct  a  judgment  erroneously  entered  upon  reasonable 
application,  when  the  rights  of  third  parties  are  not  in- 
jured ; 10  to  enter  up  an  award  as  the  judgment  of  the  court ; !1 
to  compel  a  chancellor  to  make  an  order  requiring  the  res- 
stitation  of  money  paid  under  a  decree,  which  has  been  re- 
versed on  appeal ; ,2  to  compel  a  court  to  reinstate  on  its 

pie  v.   Chenango  (Just),    1  John.  119  Ind.  431),  and  will,  it  is  claimed, 

Cas.  179.  produce  anarchy  in  legal  proceed- 

i  State  v.  Mills,  27  Wis.  403.  ings.    Dixon  v.  Judge  2d  Jud  Dist., 

2  State  v.  Snyder,  98  Mo.  555.  4  Mo.  286.     The  proper  remedy  is 

3  Williams  v.  Saunders,  5  Cold,  considered  to  be  an  application  to 
60.  the  court  itself,  which  will  make 

4  Eussell  v.  Elliott,  2  Cal.  245.  the   proper    correction.      King    v. 
s  Life,  etc.  Co.  v.  Wilson,  8  Pet.    Hewes,  3  Ad.  &  E.  725 ;  5  N.  &  M. 

291;   State  v.  Judge  Fourth  Dist.  139;  King  v.  Leicestershire  (Just), 

Ct,  28  La.  An.  451.  1  M.  &  S.  442.        When  the  court 

6  United  States  v.  Peters,  5  has  considered  and  overruled  a  mo- 
Cranch,  115;  State  v.  Whittet,  61  tion  to  amend  the  judgment  to 
Wis.  351.  conform  to  the  complaint  its  ac- 

7  Stafford  v.  Union  Bank  La.,  17  tion  is  judicial  and  the  remedy 
How.  275.  must  be  sought  by  appeal  or  writ  of 

8  Hendee  v.  Cleveland,  54  Vt  142 ;  error.  Morgan,  Ex  parte,  114  U.  S. 
Taylor  v.   Gillette,   52  Conn.  216;  174. 

State  v.  Whittet,  61  Wis.  351 ;  Hoi-        9  Henderson,  Ex  parte,  84  Ala  36. 
lister  v.  Lucas  Dist.  Ct.  (Judges),  8       io  Frederick  v.   Circuit  Judge,  52 

Ohio  St.  201 ;  Howell  v.  Crutchfield,  Mich.  529. 

Hemp.  99 ;  Frederick  v.  Mecosta  Cir.       "  Dudley,  Ex  parte,  79  Ala,  187. 
Judge,  52   Mich.  529.     This  prop-       I2  Walter  Brothers,  Ex  parte,  8& 

osition  is  denied  (White  v.  Burkett,  Ala  237. 


23i  MANDAMUS   TO    COUETS.  [§  189, 

docket  a  cause  dismissed  for  not  stating  in  the  pleadings 
the  amount  involved  in  the  suit  so  as  to  show  the  juris- 
diction of  the  court,  when  by  the  practice  of  the  court 
such  amount   might  be  shown  by  other  means ; l  to  com- 
pel  county   courts   to   put    in    their    records   in   election 
cases  their  rulings,  and  sufficient  of  the  evidence  to  ex- 
plain  them,  in   order  that  the   circuit   courts  may  prop- 
erly review  them  in  the  certiorari  proceedings  prescribed 
by  law;2  to  compel  the  lower  court  to  obey  the  mandate 
of  the  supreme  court,  which  it  disobeys,  misconstrues  or 
does  not  heed,  and  to  enter  the  proper  decree  and  to  carry 
it  into  execution;3  to  compel  a  court  to  make  the  neces- 
sary orders  in  a  criminal  case  to  enable  the  depositions  of 
witnesses  for  the  defendant,  residing  out  of  the  state,  to 
be  taken;4  to  compel  a  court  to  issue  a  writ  of  habeas 
corpus;5  to  require  a  court  to  qualify  a  deputy-sheriff;6 
to  compel  a  court  to  appoint  commissioners  to  condemn 
land  for,  and  assess  the  damages  in  the  construction  of,  a 
railroad;7  to  compel  a  court,  as  requested,  to  appoint  a 
surveyor  to  vacate  a  public  road ; 8  to  compel  a  court  to 
administer  the  oath  of  insolvency  to  a  debtor  and  then  to 
discharge  him,  though  the  court  may  believe  he  fraudu- 
lently conceals  some  of  his  assets ; 9  to  compel  a  register  to 
call  a  register's  court,  when  in  probating  a  will  a  difficult  or 
disputable  matter  comes  into  controversy ; 10  to  enable  the 
plaintiff,  when  refused  permission  by  the  court,  to  substi- 
tute  another   attorney  for  the  one  employed  by  B.,  to 

iBradstreet,  Ex  parte,  7  Pet.  634.  6  Day  v.  Fleming  County  Court 

2  Dryden  v.  Swinburne,  20  W.Va.  (Just.),  3  B.  Mon.  198;  Applegate 
g9#  v.  Applegate,  4  Mete.  (Ky.)  236. 

3  Johnson  v.Glascock,  2  Ala.  519;  ?  Illinois  C.  R.  R.  v.  Rucker,  14 
United  States  v.  Fossatt,  21  How.  111.  353;  Chicago,  etc.  R.  R.  v.  Wil- 
445 ;  State  v.  Collins,  5  Wis.  339 ;  son,  17  111.  123. 

Duffitt  v.   Crozier,   30  Kans.  150;        estate  v.  Salem  Pleas  (Judges), 

Jared   v.   Hill,  1  Blackf.  155 ;  Du-  9  N.  J.  L.  246. 
buque,  etc.,  R.  R.  Ex  parte,  1  Wall.        9  Harrison  v.  Emmerson,  2  Leigh, 

€9.  764. 

4  Giboney  v.  Rogers,  32  Ark.  462.       i"  Com.  v.  Bunn,  71  Pa  St  405. 
6  Wright  v.  Johnson,  5  Art  687. 


§  190.]  MANDAMUS   TO   COURTS.  235 

whom  the  plaintiff  had  conveyed  a  part  interest  in  the 
claim  in  dispute  with  an  agreement  that  B.  should  prose- 
cute it ; x  to  compel  the  grant  of  administration  on  an  estate 
to  the  person  entitled  to  it ; 2  to  obtain  the  release  of  one 
arrested  on  civil  process  immediately  upon  release  from  a 
similar  arrest  without  having  given  him  time  to  return 
home; 3  to  compel  a  judge  to  certify  a  cause  in  which  he  is 
interested  as  an  attorney  to  the  proper  court ; 4  and  to  com- 
pel the  trial  court  to  fix  the  amount  of  the  bond  necessary 
to  stay  proceedings  in  a  cause  pending  an  appeal  thereof  to 
an  appellate  court.5 

§  190.  Mandamus  lies  to  make  a  judge  sign  a  bill  of 
exceptions. —  A  writ  of  mandamus  lies  to  compel  a  judge 
to  sign  a  bill  of  exceptions.  Unless  the  bill  of  exceptions 
is  signed,  the  appellant  is  unable  to  enjoy  the  benefits  of 
the  right  of  appeal,  and  the  appellate  jurisdiction  of  the 
higher  courts  cannot  be  exercised.  The  right  to  issue  a 
mandamus  for  that  purpose  is  well  established.6  The  sign- 
ing and  sealing  of  a  bill  of  exceptions  is  both  ministerial 
and  judicial.  The  determination  of  what  the  bill  shall  con- 
tain is  judicial,7  consequently  a  mandamus  to  sign  a  bill  of 
exceptions  will  only  issue  when  there  is  a  clear  abuse  of 
discretion.8  The  writ  will  not  direct  the  judge  how  to 
frame  the  bill  of  exceptions ; 9  it  will  run  in  the  alternative 

1  People  v.  Norton,  16  Cal.  436.  parte,  5  Pet.  190 ;  Sansome  v.  Myers, 

2  Steward  v.  Eddy,  7  Mod.  143.  80  Cal.  483 ;  Chateaugay,  etc.  Co., 

3  People  v.  Detroit  (Superior  Petitioner,  128  U.  S.  544 ;  People  v. 
Judge),  40  Mich.  729.  Crane,  60  Cal.  279 ;  State  v.  Field, 

4  Graham  v.  People,   111  111.  253.  37  Mo.  Ap.  83;  State  v.  Drew,  32 

5  State  v.Sachs  (Wash.,  Nov.  12,  La.  An.  1043;  Briscoe  v.  Ward,  1 
1891),  27  Pac.  Rep.  1075.  Har.  &  J.  165 :  People  v.  Washing- 


GHerteman,  In  re,  73  Cal.  545 
State  v.  Macdonald,  30  Minn.  98 
Ah  Lep  v.  GongChoy,  13  Oreg.  205 
State    v.    Baxter,    38    Minn.    137 


ton  C.  Pleas  (Judges),  2  Caiues,  97 
Etheridge  v.  Hall,  7  Port.  47. 

7  People  v.  Anthony,  129  111.  218 
Clark  v.  Crane,  57  Cal.  629. 


State  v.  Barnes,  16  Neb.  37 ;  Reich-  8  Alexander  v.  State,  82  Tenn.  88 

enbach  v.  Ruddach,  121  Pa.  St.  18;  State  v.  Brockwell,  84  Tenn.  683. 

Powell  v.  Tarry,  77  Va,  250;  State  9  Chateaugay,  etc.  Co.,  Petitioner, 

v.  Whittet,  61  Wis.  351 ;  Crane,  Ex  128  U.  S.  544. 


236  MANDAMUS    TO    COURTS.  [§  190. 

form,  quod  si  ita  est,  and  if  the  return  is  quod  non  ita  est,1 
it  is  sufficient.  The  judge  is  to  decide  as  to  the  propriety, 
accuracy  and  truth  of  the  bill;  he  will  not  be  required  to 
sign  one  which  he  does  not  believe  to  be  correct.2  His  de- 
cision as  to  its  truthfulness  is  conclusive  and  final,  and  the 
court  will  hear  no  testimony  thereon.3  When  the  judge 
returns  that  he  has  already  settled  and  signed  a  bill  of  ex- 
ceptions according  to  his  knowledge  and  recollection  of  the 
facts,  such  return  is  sufficient,  and  the  matter  is  not  to  be 
determined  by  an  issue  submitted  to  a  jury.4  If  the  judge 
returns  that  he  considers  the  bill  incorrect,  or  shows  any 
other  sufficient  objection  to  it,5  as  that  it  is  illegible,  dis- 
orderly, erased  or  interlined,6  the  peremptory  writ  will  be 
refused.  When,  however,  the  judge  in  his  return  admits 
the  bill  of  exceptions  to  be  correct,7  or  has  heard  the  mo- 
tion for  a  new  trial  on  a  statement  of  the  case  stipulated 
by  the  parties  to  be  correct,8  his  duty  to  sign  the  bill  of  ex- 
ceptions becomes  merely  ministerial,  and  a  mandamus  will 
issue  to  compel  him  to  sign  it.  When  the  judge  returns  to 
the  alternative  writ,  that  he  has  settled  and  signed  a  bill  of 
exceptions,  the  writ  has  accomplished  its  purpose  and  is 
functus  officio?  The  petition  for  a  writ  of  mandamus 
should  be  accompanied  by  the  bill  of  exceptions,10  though  it 

i  Benedict  v.  Howell,  39  N.  J.  L.  People  v.  Jamison,  40  111.  93 ;  Peo- 

221.  pie  v.  Anthony,  129  111.  218;  Cum- 

2  People  v.  Williams,  91   IR  87 ;  mings  v.  Armstrong,  34  W.  Va.  1. 
People  v.  Jameson,  40  111.  93;  Brad-        5  People  v.  Pearson,  2  Scam.  189 ; 
street,  Ex  parte,  4  Pet  102 ;  State  v.  Etheridge  v.  Hall,  7  Port.  47 ;  State 
Todd,  4  Ohio,  351.  v.  Hawes,  43  Ohio  St.  16 ;    Brad- 

3  Shepard  v.  Peyton.  12  Kans.  616 ;  street,  Ex  parte,  4  Pet.  102. 
Benedict  v.  Howell,  39  N.  J.  L.  221 ;        6  Cottle  v.  Harrold,  72  Ga.  830 ; 
Sikes  v.  Ransom,  6  John.  279 ;  State  Preetorius  v.  Barnes,  75  Ga.  313. 

v.  Todd,  4  Ohio  St.  351 ;   Creager  7  Conrow  v.  Schloss,  55  Pa.  St.  28. 

v.  Meeker,  22  Ohio  St.  207 ;  State  v,  8  State  v.  Cox,  26  Minn.  214. 

Small,  47  Wis.  436 ;  State  v.  Shel-  9  Thornton  v.  Hoge,  84  Cal.  231 : 

don,  2  Kans.  322 ;  State  v.  Babcock,  People  v.   Wayne  Cir.   Judge,   32 

51   Vt.   570 ;    Cummings  v.    Arm-  Mich.  259. 

strong,  34  W.  Va.  1.  10  Creager  v.  Meeker,  22  Ohio  St. 

4  State  v.   Noggle,   13   Wis.  380;  207 ;  Sikes  v.  Ransom,  6  John.  279  ; 


§  190.]  MANDAMUS   TO    COCKTS.  237 

is  not  necessary  to  recite  the  bill  in  the  petition,1  or  the 
court  may  not  be  able  to  determine  whether  it  will  tend  to 
manifest  anv  error  committed  on  the  trial,  and  may  for 
that  reason  refuse  the  writ.2     The  bill  of  exceptions  pre- 
sented to  the  judge  must  in  good  faith  profess  to  contain 
all  the  evidence.     The  court  cannot  be  required  to  draft  a 
lengthy  bill  of  exceptions,  or  to  perform  clerical  work  of 
moment,  either  directly  or  indirectly.3     The  court  cannot 
say  the  bill  is  wrong,  fold  its  hands  and  do  nothing;  but, 
when  a  bill  is   prepared  that  is  claimed  to  embrace  the 
whole  proceedings,  it  is  its  duty  to  carefully  examine  it  and 
correct  it  if  need  be,  so  as  to  make  it  speak  the  absolute 
truth.4     If  the  court  refuses  to  incorporate  in  a  bill  of  ex- 
ceptions an  affidavit  which  it  ordered  stricken   from  the 
files,  a  mandamus  may  be  obtained  to  compel  such  inser- 
tion, provided  the  affidavit  is  not  objectionable.5    The  per- 
son who  offers  a  bill  of  exceptions  ought  to  present  such 
an   one   as   the  judge  can   sign.     The   course   to  be  pur- 
sued is,  either  to  endeavor  to  draw  up  a  bill  by  agreement 
which  the  judge  can   sign,  or  to  prepare  a  bill  to  which 
there  can  be  no  objection,  and  present  it  to  the  judge.6    At 
best  a  litigant's  efforts  to  present  his  case  properly  before 
an  appellate  court  are  largely  dependent  upon  the  trial 
judge,  since  the  bill  of  exceptions  is  moulded  on  the  recol- 
lections  of  the  latter.      Such  provision    for   determining 
what  evidence  was  presented  at  the  trial  seems  unavoid- 
able, since  the  right  to  finally  decide  must  be  lodged  some- 
where.   At  present  the  general  use  of  stenographers  reduces 
the  liability  of  error  to  a  minimum. 

People  v.  Jamison,  40  I1L  93 ;  Page  4  Swartz  v.   Nash,    supra;  Van- 

v.  Clopton,  30  Grat  415 ;  Conrow  vabrye  v.  Staton,  88  Term.  334. 

v.  Schloss,  55  Pa.  St  28.  5Van  Etten  v.  Butt  (Neb..  June 

i  People    v.    Westchester  Ct  C.  30,  1891),  49  N.  W.  Rep.  365. 

Pleas,  4  Cow.  73.  6  Bradstreet,  Ex  parte,  4  Pet  102 ; 

2  People  v.  Dickson,  46  CaL  53.  People  v.  Jamison,  40  I1L  93;  Page 

3  Sansome  v.  Myres,  77  CaL  353 ;  v.  Clopton,  30  Grat  415. 
Swartz  v.  Nash,  45  Kans.  341. 


238  MANDAMUS   TO   COURTS.  [§§  191,  192. 

§  191.  Application  under  the  statute  of  Westminster 
to  compel  the  signing  of  a  hill  of  exceptions. —  When  the 
application  for  an  order  to  compel  the  judge  to  sign  a  bill 
of  exceptions  is  framed  under  the  statute  of  Westminster 
2d  (13  Edward  1,  ch.  31),  the  judge  is  required  to  con- 
fess and  seal  the  exceptions  or  to  deny  them.  If  he  con- 
fess and  seal  them,  they  become  part  of  the  record ;  if  he 
deny  them,  the  petitioner  has  his  action  at  law  for  a  false 
return.  This  proceeding,  however,  is  special  and  is  not  a 
mandamus,  and  seems  to  be  used  in  only  one  state,  where 
it  was  adopted  by  statute.1 

§  192.  The  hill  of  exceptions  must  he  presented  to  the 
judge  within  the  proper  time. —  A  court  will  not  be  re- 
quired to  sign  a  bill  of  exceptions,  unless  it  be  presented 
within  the  proper  time.  It  must  be  presented  to  the  judge 
for  signature  within  the  time  allowed  by  law,  which  is  gen- 
erally during  the  term  in  which  the  case  is  tried; 2  but  the 
court  may  extend  the  time  by  an  order  which  must  be  en- 
tered of  record.3  After  such  period  the  court  will  not  be 
required  to  sign  the  bill.4  Among  other  reasons  why  the 
delay  is  not  admissible  is  the  fact  that  the  judge  may  for- 
get the  evidence.5  When  the  judge  is  required  to  decide 
whether  such  delay  is  excusable,  his  decision  in  such  matter 
is  judicial,  and  a  mandamus  will  not  lie  to  make  him  sign 
the  bill,  since  such  action  would  control  his  judicial  discre- 
tion as  to  whether  the  delay  in  presenting  the  bill  was  ex- 
cusable.6 It  is  no  objection  that  the  application  for  a 
mandamus  to  compel  the  judge  to  sign  the  bill  is  made 
after  the  period  limited  by  law  for  such  signing  has  passed, 
if  the  applicant  has  performed  his  duty  in  due  season,  and 
the  delay  is  due  to  the  fault  or  absence  of  the  judge,  or  the 

i  Conrow  v.  Schloss,  55  Pa.  St.  28 ;  *  State  v.  St.  Louis  C.  Court 
Haines  v.  Com.,  99  Pa.  St.  410.  (Judge),  41  Mo.  598. 

2  Medberry  v.  Collins,  9  Johns.  4  Alexander  v.  State,  14  Lea,  88. 
345 ;  Sheppard  v.  Wilson,  6  How.  5  Sikes  v.  Ransom,  6  John.  279. 
2G0.  6  Sprague  v.  Fawcett,  53  Cal.  408 ; 

Stonesif  er  v.  Armstrong,  86  Cal.  59  4. 


§§  193,  194:.]  MANDAMUS   TO   COURTS.  239 

fault  of  the  opposing  party.1  The  court  will  not  be  re- 
quired to  settle  a  bill  of  exceptions  on  a  motion  for  a  new- 
trial,  when  the  motion  itself  wras  made  after  the  time  lim- 
ited therefor,  since  the  court  will  not   order  a  vain  thine.2 

§  193.  No  one  can  be  required  to  sign  a  bill  of  excep- 
tions except  au  officer. —  Since  a  mandamus  never  issues 
against  a  private  party,  it  will  not  compel  a  person  to  sign 
a  bill  of  exceptions,  who  by  consent  of  the  parties  acted  as 
judge  on  the  trial  of  the  cause,3  nor  to  the  trial  judge,  who 
has  since  resigned,  or  whose  term  of  office  has  since  ex- 
pired.4 

§  194.  Cases  where  a  mandamus  to  sign  a  bill  of  ex- 
ceptions will  be  refused. —  It  is  a  matter  of  course  that  a 
judge  cannot  be  called  upon  to  sign  a  bill  of  exceptions  in 
a  case  tried  by  his  predecessor,  since  he  can  know  nothing 
about  it ; 5  but  it  is  said  that  he  should  be  applied  to  for 
that  purpose,  as  he  would  no  doubt  grant  a  new  trial  if  satis- 
fied that  justice  requires  it.6  It  would  seem  that  justice 
would  require  a  new  trial  in  all  such  cases,  else  the  litigant 
would  be  deprived  of  rights  accorded  to  others.  It  has  been 
held  that  a  judge  has  no  power  over  a  bill  of  exceptions 
after  he  has  signed  it  and  it  has  been  filed,  and  that  any 
alterations  made  in  it  thereafter  by  him  are  made  in  his 
private  capacity,  and,  therefore,  a  mandamus  will  not  lie  to 
compel  him  to  restore  it  to  its  former  condition.7     A  judge 

lEtheridge  v.  Hall,  7  Port  47;  (Village),    20    Wis.    194;    Hale    v. 

People  v.  Lee,  14  Cal.  510 ;  Trinity,  Haselton,  21  Wis.  320.    In  Nebraska 

&c.  R.  R.  v.  Lane,  79  Tex.  643 ;  Peo-  a    mandamus    has    been    granted 

pie  v.   Van  Buren  C.   (Judge),  41  against  an  ex-judge  to  compel  him 

Mich.  725.  to  sign  a  bill  of  exceptions  because 

2  Clark  v.  Crane,  57  Cal.  629.  otherwise  there  was    no    remedy. 

3  State  v.  Larrabee,  3  Wis.  783.  State  v.  Barnes,  16  Neb.  37.    The 

4  De  Haas  v.  Newaygo  Cir.  Judge,  same  object  was  accomplished  in 
46  Mich.  12;  State  v.  Pearson,  3  Pennsyhania  by  a  certiorari.  Gal- 
Scam.   270.     A  custom  sprang  up  braith  v.  Green,  13  S.  &  R,  85. 

in  Wisconsin  for  the  trial  judge  to  5  Fellows  v.  Tait,  14  Wis.  156. 

sign  the  bill  of  exceptions,  though  6  De  Haas  v.  Newaygo  Cir.  Judge, 

his  term  of  office  had  expired,  and  46  Mich.  12. 

the  custom  was  considered  to  be  7  State  v.  Powers,  14  Ga.  388. 
unobjectionable.    Davis  v.  Menasha 


240  MANDAMUS    TO    COURTS.  [§  195. 

will  not  be  required  to  sign  a  bill  of  exceptions  in  a  crim- 
inal case,  when  the  prisoner  has  escaped  after  conviction. 
The  courts  will  not  encourage  escapes  and  facilitate  the 
evasion  of  the  justice  of  the  state  by  extending  to  escaped 
convicts  the  means  of  reviewing  their  convictions.1  The 
fact  that  there  is  another  remedy  bars  the  use  of  a  man- 
damus. A  mandamus  will  be  refused  to  compel  a  judge  to 
sign  a  bill  of  exceptions,  when  the  law  says  by-standers  may 
sign  it,2  till  such  statutory  remedy  be  pursued  or  shown  to 
be  unavailable.3 

§  195.  Mandamus  to  restore  attorneys  who  have  oeen 
disbarred. —  The  remedy  by  mandamus  has  been  applied 
from  an  early  day  to  correct  the  abuses  of  inferior  courts 
in  summary  proceedings  against  their  officers,  and  especially 
against  the  attorneys  and  counselors  of  the  courts.  The 
order  disbarring  attorneys,  or  subjecting  them  to  fine  or 
imprisonment,  is  not  reviewable  by  writ  of  error,  it  not 
being  a  judgment  in  the  sense  of  the  law  for  which  such 
writ  will  lie.  Without,  therefore,  the  use  of  the  writ  of 
mandamus,  however  flagrant  the  wrong  committed  against 
these  officers,  they  would  be  destitute  of  any  redress. 
"Where  the  act  complained  of  rested  in  the  exercise  of  the 
court's  discretion,  the  remedy  by  mandamus  has  failed. 
But  such  discretion  is  not  unlimited;  for  if  it  be  exercised 
with  manifest  injustice,  the  court  of  king's  bench  will  com- 
mand its  due  exercise.  It  must  be  a  sound  discretion  and 
according  to  law.  This  proceeding  by  mandamus,  to  re- 
dress the  injury  which  an  attorney  has  sustained  by  a  dis- 
barment, fine  or  imprisonment,  is  admitted  to  be  the 
recognized  remedy  when  the  case  is  outside  of  the  exercise 
of  the  court's  discretion,  and  is  one  of  irregularity,  or  against 
law,  or  of  flagrant  injustice,  or  without  jurisdiction.4  The 
reasons  given  for  issuing  the  writ  in  such  cases  are,  that  the 
office  of  an  attorney  is  of  public  concern  and  regards  the 

i  People  v.  Genet,  59  N.  Y.  80.  3  State  v.  Thayer,  15  Mo.  Ap.  391. 

2  Jamison  v.  Reed,  2  G.  Greene,  4  Bradley,  Ex  parte,  7  Wall  364. 
394 ;  State  v.  Wickham,  65  Mo.  634. 


§  100.]  MANDAMUS    TO   COURTS.  241 

administration  of  justice,  and  that  there  is  no  other  remedy.1 
A  mandamus  is  a  proper  remedy  to  restore  an  attorney 
who  has  been  disbarred,2  when  the  court  exceeded  its  juris- 
diction,3 or  acted  improperly,  or  the  charge  was  founded 
in  error  or  mistake,4  or  when  the  disbarment  is  a  nullity,5 
or  the  cause  of  disbarment  was  a  contempt  alleged  to  have 
been  committed  before  another  court,6  or  the  court  has  de- 
cided erroneously  on  the  testimony  and  it  is  a  plain  case  of 
wrong  and  injustice,7  or  the  judgment  is  too  severe,  the  of- 
fense being  rather  a  mistake  than  an  intentional  error.8  In 
some  cases  the  courts  have  declined  to  interfere  because  the 
questions  involved  were  of  judicial  discretion,  and  because 
the  courts  are  not  inclined  to  interfere  in  any  case  unless 
the  conduct  of  the  lower  court  was  irregular  or  flagrantly 
improper.9  So  where  the  law  allows  one  possessing  the 
necessary  qualifications  to  apply  to  be  examined  as  to  his 
qualifications  for  practicing  law,  a  mandamus  will  lie  to 
secure  to  him  such  an  examination,  and  the  necessary  cer- 
tificate if  he  is  found  to  be  qualified.10  Where,  however, 
the  admission  of  an  attorney  is  a  judicial  act,  a  mandamus 
will  not  lie  to  compel  a  court  to  admit  a  party  to  be  an 
attorney.11 

§  196.  Mandamus  not  granted  to  review  interlocutory 
proceedings  of  the  courts. —  A  mandamus  will  not  be 

i  White's  Case,  6  Mod.  18;  Hurst's  «Burr,  Ex  parte,  9  Wheat  521): 

Case,   1   Lev.  75 ;    People  v.    Dela-  Bradley,  Ex  parte,  7  Wall.  36  1. 

ware  C.  Pleas  (Just).  1  Johns.  Cas.  1()  State  v.  Baker,  J5  Flu.  598.     It 

181.  did   not  lie    to   the  inns  of  court. 

2  Withers  v.  State,  3G  Ala.  252.  since  they  were  lmt  voluntary  as- 

3  Robinson,  Ex  parte,  19  Wall,  sociations.  and  possessed  no  powers 
505;  State  v.  Sachs  (Wash.,  May  21.  save  what  the  judges  delegated  to 
1891),  26  Pac.  Rep.  865.  them.     The  remedy  was  to  apply  to 

4Gephard,  In   re,   1   Johns.    Cas.  the  judges.     King   v.    Gray's    Inn 

134.  (Benchers).  Doug.  353. 

5  Walls  v.  Palmer.  64  Ind.  493.  "Com.   v.   Cumberland  C.   Pleas 

6  Bradley,  Ex  parte,  7  Wall.  364.  (Judges),  1  S.  &  R.  187;  Com.  v. 
'  State  v.  Kirke,  12  Fla.  278.  District  Court  (Judges),  5  Watts  & 
8  People    v.    Delaware    C.    Pleas  S.  272. 

(Just),  1  Johns.  Cas.  181. 
1G 


242  MANDAMUS   TO   COURTS.  [§  196. 

granted  to  review  interlocutory  proceedings,  or  orders  of 
a  court  made  in  a  cause  pending  before  it  prior  to  the  final 
determination  thereof,1  even  though  the  action  of  the  court 
bears  harshly  and  oppressively  on  the  relator.2  The  rem- 
edy is  by  appeal  or  writ  of  error  after  final  judgment. 
Apart  from  the  question  of  interfering  by  mandamus  in 
questions  involving  the  judgment  and  discretion  of  courts, 
it  has  been  considered  that  such  interference  would  make 
legal  controversies  interminable;3  would  involve  great  ex- 
pense, and  would  overwhelm  the  superior  courts  to  the 
great  delay  of  justice,4  while  the  same  questions  would  come 
up  again  on  an  appeal  from  the  final  judgment  or  decree. 
This  writ  has  been  refused :  to  compel  a  trial  judge  to  pre- 
vent the  filing  of  a  pleading,  though  it  was  claimed  that  in 
no  other  way  could  the  relator  assert  an  alleged  constitu- 
tional right;5  to  allow  a  person  to  be  admitted  as  a  party 
to  foreclosure  proceedings;6  to  vacate  an  order  setting 
aside  a  nonsuit ; 7  to  compel  a  court  to  obey  the  orders 
prescribed  for  equitable  proceedings;8  to  allow  a  plaintiff 
to  dismiss  the  cause  at  his  costs ; 9  to  compel  a  court  to  set 
aside  an  injunction;10  to  make  a  court  reverse  its  ruling  on 
the  admissibility  of  certain  evidence,  though  such  court 
was  the  highest  appellate  court  for  such  case;11  to  compel 
a  change  of  venue ; 12  or  to  allow  an  appeal  from  an  inter- 
locutory order,  such  as  the  allowance  of  alimony  and  coun- 
sel fees  in  a  divorce  suit  subsequent  to  the  granting  of  the 

»  Perry,  Ex  parte,  102  U.  S.  183 ;  pie,  18  Wend.  79 ;  State  v.  Engel- 

Bradstreet,    Ex  parte,  8  Pet.  588 ;  man,  86  Mo.  551. 
Sawyer,    Ex  parte,   88  U.  S.   235 ;        5  state  v.  Thayer,  10  Mo.  Ap.  540. 
Life,  etc.  Ins.  Co.  v.  Adams,  9  Pet.        6  Moon  v.  Wellford,  84  Va.  34. 
571 ;  Hoyt,  Ex  parte,  13  Pet  279 ;        1  Loring,  Ex  part-,  94  U.  S.  418. 
Flippen,   Ex   parte,   94  U.  S.  348;        *Myra  Clarke  Whitney,  Ex  parte, 

State  v.  Williams,  69  Ala.  311.  13  Pet.  404. 

2  Myra  Clarke  Whitney,  Ex  parte,        9  People  v.  Pratt,  28  Cal.  166. 

13  Pet  404.  io  Schwab,  Ex  parte,  98  U.  S.  240. 

3  People  v.  Dutchess  C.  Pleas,  20       1J  Scott  v.  Superior  Court  75  Cal. 
Wend.  658.  114. 

*  Judges  Oneida  C.  Pleas  v.  Peo-       12  Chambers,  Ex  parte,  10  Mo.  Ap. 

240. 


§§  197,  198.]  MANDAMUS   TO   COUKTS.  243 

divorce,  but  while  the  division  of  the  property  and  the  cus- 
tody of  the  offspring  were  reserved  for  further  action  by  the 
court.1 

§  197.  Exceptions  to  the  rule.—  The  rule,  that  a  man- 
damus will  not  lie  to  review  or  correct  the  interlocutory 
orders  or  decisions  of  a  court,  is  not  of  universal  accept- 
ance. In  New  York  it  has  been  allowed:  to  vacate  an 
order  setting  aside  a  report  of  referees ; 2  to  correct  erro- 
neous practice ; 3  to  vacate  a  rule  allowing  an  amendment  by 
permitting  the  declaration  to  be  filed  there,  and  requiring 
the  defendant  to  plead  in  that  court,  whereas  the  declara- 
tion and  the  rule  to  plead  had  been  entered  in  another 
court,4  and  to  vacate  a  rule  for  a  new  trial.5  But  this  posi- 
tion is  now  abandoned,  and  the  New  York  courts  will  no 
longer  issue  this  writ  to  review  the  interlocutory  proceed- 
ings of  courts.6  A  mandamus  has  been  issued  in  Arkansas 
to  compel  the  allowance  of  an  injunction.7 

§  198.  Mandamus  often  granted  in  Louisiana  to  review 
interlocutory  orders.— Under  the  law  of  Louisiana  liti- 
gants may  appeal  from  all  interlocutory  judgments,  when 
such  judgments  may  cause  irreparable  injury ; 8  in  other 
cases  the  courts  will  not  interfere  with  such  judgments.9 
Accordingly  a  mandamus  was  refused  to  compel  the  allow- 
ance of  an  appeal  from  an  interlocutory  order  in  a  suit  for 
a  dissolution  of  a  partnership,  directing  a  sale  of  the  part- 
nership property,  because  such  sale  would  not  cause  ir- 
reparable injury.10  Where  a  case  was  still  pending  and 
undisposed  of,  a  mandamus  was  held  to  be  proper  to  allow 

i  Lake  v.  King,  16  Nev.  215.  Pleas  (Judges)  v.  People.  18  Wend. 

2  People  v.  Niagara  C.  Pleas,  12  79;     People     v.    Oneida    C.    Pleas 
Wend.  246.  (Judges',  21  Wend.  20. 

3  Blunt  v.  Greenwood,  1  Cowen,  7  Pile,  Ex  parte,  9  Ark.  336. 

15.  8  state    v.    Judge    Fourth    Dist. 

4  People  v.Superior  Court  N.  Y.,  Court,   21    La.    An.  736;    State    v. 
18  Wend.  675.  Judge  Third    Dist.   Court,   31   La. 

5  Craykendoll,  Ex  parte,  6  Cow.  An.  800. 

53.  -0  State  v.  Judge,  15  La.  521. 

6  People     v.    Dutchess    C.    Pleas       10  State  v.  Judge  Third  Dist  Court, 
(Judges),  20  Wend.  658 ;  Oneida  C.    6  La,  An.  481. 


24:4  MANDAMUS    TO   COURTS.  [§  198. 

an  appeal  from  the  order  of  the  court,  carrying  into  effect 
a  prior  judgment  in  the  case,  which  was  confirmed  on  ap- 
peal, when  such  order  was  more  extensive  than  the  appel- 
late judgment.1  A  mandamus  was  issued  to  allow  a  sus- 
pensive appeal  from  an  order  dissolving  an  injunction;2 
but  it  was  considered  to  be  necessary  that  the  continua- 
tion of  the  acts  enjoined  would  cause  irreparable  injury.3 
At  one  time  the  courts  in  Louisiana  refused  to  review  or 
correct  by  mandamus  any  interlocutory  judgment  or  de- 
cree ; 4  but  under  the  provisions  of  a  later  state  constitution 
the  courts  claimed  the  right  to  compel  an  inferior  court  by 
mandamus  to  issue  an  injunction  in  a  case  clearly  sufficient 
on  the  facts,  when  no  question  of  law  was  involved.  At  the 
same  time  the  courts  disclaimed  any  intention  of  interfer- 
ing with  the  independence  of  the  courts  or  of  overruling 
their  discretion,  save  in  a  clear  case  of  usurpation  of  au- 
thority or  abuse  of  discretion,  but  reserved  the  right  to 
make  exceptions  to  such  disclaimer  if  they  considered  public 
interests  demanded  it.5  Under  the  wording  of  the  Louisiana 
law,  a  mandamus  may  issue  to  prevent  a  failure  of  justice, 
and  the  supreme  court  has  considered  that  therefore  it 
should  issue  in  all  cases  where  the  law  has  assigned  no  re- 
lief by  the  ordinary  means,  and  when  justice  and  reason 
require  that  some  mode  shall  exist  for  redressing  a  wrong 
or  an  abuse  of  any  nature  whatever.6  Even  if  the  party 
has  other  means  of  relief,  the  court  will  issue  the  writ  of 
mandamus  in  his  behalf,  if  the  slowness  of  ordinary  legal 
forms  is  likely  to  produce  such  immediate  injury  or  mis- 
chief as  ought  to  be  prevented.7  Accordingly  this  writ  has 
been  used  to  compel  the  lower  court  to  issue  an  injunction 
in  limine  which  it  had  already  refused  to  do;  but  to  obtain 
a  mandamus  m  such  a  case,  it  must  appear  that  the  party 

1  State    v.    "West    Baton    Rouge  La.  An.  905 ;  State  v.  Parish  Judge 
(Judge  Prob.),  8  Rob.  193.  of  St.  Bernard,  31  La.  An.  794. 

2  State    v.    Judge    Fourth    Disk  5  State    v.     Judge     Sixth     Dis1:. 
Court,  21  La.  An.  736.  Court,  32  La.  An.  549. 

3  State  v.  Monroe,  41  La.  An.  241.  «  State  v.  Young.  38  La.  An.  923. 

4  State  v.  Judge  Sixth  Disk,  28  7  State  v.  Lazarus,  36  La.  An.  578. 


§  199.]  MANDAMUS   TO    COUKTS.  245 

is  entitled  as  of  right  to  the  injunction,  the  facts  must  be 
clearly  sufficient,  and  no  question  of  law  must  be  involved.1 
In  other  decisions  it  is  said  that  a  mandamus  will  not  lie  to 
compel  a  judge  to  grant  an  injunction  which  he  has  already 
refused,  unless  it  is  a  cause  where  under  the  code  of  prac- 
tice he  has  no  discretion ; 2  if  he  has  such  discretion  his  de- 
cision can  only  be  reviewed  on  appeal.3  Where  a  court 
erroneously  refused  to  try  a  case  himself  and  referred  it  to 
a  jury,  a  mandamus  was  issued  to  make  him  try  the  case 
himself.4  The  constitution  of  Louisiana  has  been  changed 
several  times,  and  the  varying  rulings  of  their  courts  are 
due  to  such  changes.  At  present  the  supreme  court  of  that 
state  claims  great  latitude  in  reviewing  the  actions  of  the 
lower  courts,  because  the  present  constitution  vests  it  with 
supervisory  control  and  supervision  over  inferior  courts.5 

§  199.  Interlocutory  orders  of  courts  may  in  Alabama 
be  reviewed  by  the  writ  of  mandamus.—  The  ruling  in 
Alabama  on  this  point  is  also  exceptional,  and  the  writ  of 
mandamus  has  been  issued :  to  correct  the  action  of  the  court 
in  granting:  or  setting  aside  an  attachment  for  a  witness ; fi  to 
revise  the  action  of  the  court  in  quashing  or  refusing  to 
quash  an  ancillary  attachment ; 7  to  place  a  cause  on  the 
docket  when  a  judgment  was  made  absolute  too  soon;8  to 
reinstate  a  suit  dismissed  by  consent  of  court  by  A.,  in  whose 
name  the  suit  was  brought  for  B.'s  benefit ; 9  to  restore  a 
suit  improperly  abated  on  the  death  of  the  plaintiff ; 10  to 
make  the  court  declare  a  bond  for  costs  to  be  insuffi- 
cient, though  the  court  had  held  otherwise; u  to  enforce  an 

1  State  v.  Lazarus,  36  La,  An.  578 ;  '  Gee  v.  Alabama,  etc.  Co.,  13 
State  v.  Judge,  40  La.  An.  206.  Ala.  579 ;  Hudson  v.  Daily,  13  Ala. 

2  State  v.  Judge,  41  La.  An.  951.  722;    Putnam,  Ex    parte,   20  Ala. 

3  State  v.  Rightor,  40  La.  An.  852 ;  592 ;  Boraim  v.  De  Costa,  4  Ala. 
State  v.  Judge  Sixth  Dist.  Court,  32  393. 

La.  An.  549.  8  Lowe,  Ex  parte,  20  Ala.  330. 

4  State    v.    Judge    Twenty-sixth  9  Brazier  v.  Tarver,  4  Ala.  569. 
Dist  Court,  34  La.  An.  1177.  10  State  ex  reL  Nabor,  7  Ala.  459. 

5  State  v.  Ellis,  41  La.  An.  41.  »  Morgan,  Ex  parte,  30  Ala.  51. 

6  Hogan  v.  Alston,  9  Ala,  627. 


246  MANDAMUS   TO   COURTS.  [§  199. 

agreement  not  to  file  papers  in  a  pending  suit,  when  the 
opposing  counsel  has  been  allowed  to  file  an  amended  com- 
plaint in  contravention  thereof  51  to  reinstate  a  cross-bill 
dismissed  before  the  final  termination  of  the  cause; 2  to  re- 
vive a  suit ; 3  to  set  aside  an  order  for  a  rehearing  when  it 
was  granted  improperly;4  to  dismiss  a  suit  brought  by  a 
non-resident  without  giving  security  for  costs;5  to  grant 
an  order  for  a  rehearing  which  was  improperly  refused ; 6  to 
set  aside  an  order  improperly  granted  restraining  a  plaint- 
iff from  continuing  his  suit  at  law  till  a  motion  for  an  elec- 
tion therein  was  disposed  of ; 7  to  allow  temporary  alimony 
and  attorneys'  fees  to  a  wife  during  the  pendency  of  a  suit 
for  a  divorce  and  before  permanent  alimony  had  been  set 
apart  for  her;s  to  reinstate  a  cause  improperly  stricken 
from  the  docket ; 9  to  allow  an  amendment  to  a  complaint; 1U 
to  change  the  orders  of  a  court  relative  to  giving  bonds  in 
attachment  proceedings; n  to  vacate  in  attachment  proceed- 
ings an  order  to  pay  over  the  proceeds  of  a  sale  to  the  de- 
fendant on  a  claim  of  exemption,  when  the  order  was  wrong 
and  the  defendant  was  insolvent;12  to  correct  the  error  in 
the  ruling  of  a  judge  in  improperly  refusing  in  vacation  to 
grant  a  rehearing  of  a  demurrer,  which  he  had  then  sus- 
tained to  the  defendant's  petition  for  a  rehearing,  when  a 
judgment  had  been  taken  by  default.13  Notwithstanding 
these  decisions  there  are  other  decisions  from  the  same 
court  declining  to  interfere  in  such  cases.  A  mandamus 
to  compel  the  dissolution  of  an  injunction,  upon  the  filing 
of  the  answer,  was  refused.     The  court  said  that  it  would 

i  Lawrence,  Ex  parte,  34  Ala.  446.        »  King,  Ex  parte,  27  Ala.  387. 

2  Thornton,  Ex  parte,  46  Ala.  384        9  State  ex  rel.  Stow,  51  Ala.  69 ; 

3  Ware,  Ex  parte,  48  Ala.  223.  Abrams,  Ex  parte,  48  Ala  151. 

i  North,   Ex  parte,   49  Ala  385;       10  South.  &  N.  Ala.  R.R.,  Ex  parte, 

Bruce  v.  Williamson,  50  Ala  313.  65  Ala.  599 ;  Lee  v.  Harper,  90  Ala. 

5  Cole,  Ex  parte,  28  Ala  50 ;  Rob-  548. 
bins,  Ex  parte,  29  Ala  71.  u  Haralson,  Ex  parte,  75  Ala  543. 

e  Walker,  Ex  parte,  54  Ala  577.  u  Barnes,  Ex  parte,  84  Ala,  540. 

7  Alabama  etc.  Co.,  Ex  parte,  59       li  Chastain  v.  Armstrong,  85  Ala. 

Ala  192.  215. 


§  199.]  MANDAMUS   TO   COURTS. 


247 


not  interfere  with  interlocutory  orders,  and  that  such  an  in- 
terference would  be  an  intolerable  nuisance.1     The  same  rea- 
son seeins  to  have  controlled  the  court  in  refusing  a  man- 
damus to  compel  the  lower  court  to  strike  a  case  from  the 
docket.2     The  court  has  refused  to  interfere  by  a  mandamus 
to  compel  the  court  to  accept  the  verdict  of  a  jury,3  or  to 
grant  a  change  of  venue  in  a  criminal  case,4  because  such 
matters  were  within  the  discretion  of  the  court.     A  man- 
damus to  vacate  an  order  suppressing  depositions  was  re- 
fused.    The  reason  assigned  was,  that  the  matter  would 
come  up  on  appeal,  and  that  it  would  embarrass  the  court 
to  review  in  this  manner  all  of  the  decisions  of  the  lower 
courts.5     The  court  has  lately  shown  a  disposition  to  decline 
any  interference  in  the  case  of  interlocutory  orders.     It 
said  that  it  had  gone  as  far  as  it  was  willing  in  this  direc- 
tion, and  was  inclined  to  restrain  such  jurisdiction,  and  that 
it  would  not  award  a  mandamus  when  full  relief  could  be 
obtained  by  appeal,  writ  of  error  or  otherwise.     The  im- 
proper allowance  of  an  amendment  to  the  pleadings  was 
considered  to  be  no  ground  for  a  mandamus.     The  force  of 
this  decision  was,  however,  broken  by  a  further  statement, 
that  in  a  proper  case  the  court  might  grant  a  mandamus 
to  compel  the  allowance  of  an  amendment  to  the  plead- 
ings.6    A  mandamus  was  refused  to  compel  the  court  to 
vacate  an  order,  made  at  the  instance  of  one  of  the  liti- 
gants, setting  aside  an  agreed  statement  of  facts,7  and  to 
compel  a  judge  to  hear  and  determine  a  motion,  which  he 
had  overruled  on  the  ground  that  he  had  no  jurisdiction  to 
entertain  it.8     In  the  two  last  cases  the  court  said  that 
such  rulings  could  be  reviewed  on  appeal  from  the  final 
judgments. 

i  Montgomery,  Ex  parte,  24  Ala.  6  South,  etc.  R.  R,  Ex  parte,  65 

98.  Ala.  599. 

*  Garland,  Ex  parte,  43  Ala.  559.  '  Hayes,  Ex  parte  (Ala.,  April  9, 

s  Henry,  Ex  parte,  24  Ala.  638.  1891),  9  South.  Rep.  156. 

4  Banks,  Ex  parte,  28  Ala  28.  8  Hum,  Ex  parte  (Ala.,  June  16, 

5Elston,  Ex  parte,  25  Ala.  72.  1891),  9  South.  Rep.  515. 


2  iS  MANDAMUS    TO   COURTS.  [§  200. 

§  200.  Interlocutory  orders  of  courts  may  in  Michigan 
be  reviewed  by  writs  of  mandamus. —  In  Michigan  the 
rule,  that  the  interlocutory  orders  in  a  suit  will  not  be  re- 
vised or  corrected  by  mandamus,  has  never  been  recognized. 
The  writ  has  been  issued :  to  vacate  an  order  vacating  the 
service  of  process  on  the  defendant ; l  to  vacate  an  order  re- 
scinding an  order  of  removal  of  a  cause ; 2  to  rescind  an 
order  to  a  garnishee,  founded  on  his  return,  to  pay  over 
money  and  certain  notes  to  a  receiver  appointed  by  the 
court,  who  was  instructed*  to  hold  such  articles  till  further 
orders,  because  the  return  did  not  justify  such  an  order;3 
to  vacate  an  order  quashing  an  attachment  sued  out  against 
two  out  of  six  defendants,  because  the  affidavit  was  wrongly 
held  to  be  insufficient;4  to  set  aside  a  default  without  the 
payment  of  costs  as  required  by  the  court ; 5  to  set  aside  an 
injunction;6  to  vacate  an  order  restoring  an  appeal  which 
had  been  dismissed  ; 7  to  vacate  the  service  of  a  civil  capias 
which  was  wrongfully  issued;8  to  vacate  the  confirmation 
of  the  report  of  commissioners  appointed  to  condemn  land, 
because  the  confirmation  was  made  at  a  time  when  the 
court  could  not  lawfully  make  it ; 9  to  set  aside  the  service 
of  process  on  a  person  attending  court  as  a  witness  in  an- 
other case,  which  the  lower  court  had  refused  to  do ; 10  to 
vacate  the  service  of  a  civil  capias  wrongfully  issued;11  to 
vacate  an  order  restraining   competent  proceedings  in  a 

1  People  v.  Wayne  Circuit  (Judge),  refused,  unless    the  court  is  con- 
22  Mich.  493.  vinced  of  the  necessity  of  a  suni- 

2  People  v.  Wayne  Circuit  (Judge),  mary    interference.     Mills    v.  Bre- 
39  Mich.  115.  voort,  77  Mich.  210;  Detroit  (City) 

3  People  v.  Cass  Circuit  Judge,  39  v.  Hosmer.  79  Mich.  384. 

Mich.  407.  7  Ellair  v.  Judge,  46  Mich.  496. 

4  People  v.  Bay  Co.  Cir.  Ct.  (Judge),  8  Baldwin  v.  Branch  Cir.  Judge, 
A I  Mich.  326.  48  Mich.  525. 

5  Arno  v.  Circuit  Court,  42  Mich.  » Michigan  C.  R.  R.  v.  Tuscola  Co. 
362.  (Proh.  Judge),  48  Mich.  638. 

tiTawas,  etc.  R  R  v.  Cir.  Judge,  10  Mitchell  v.  Huron  Co.  Judge,  53 

44  Mich.  479;  Van  Norman  v.  Cir.  Mich.  541. 

Judge,  45  Mich.  204.    A  mandamus  u  Baldwin  v.  Branch  Ct  Judge, 

to  set  aside  an  injunction  will  be  48  Mich.  525. 


§  201.]  MANDAMDS   TO    COURTS. 


24'J 


court  of  co-ordinate  jurisdiction ; 1  to  set  aside  a  verdict  and 
grant  a  new  trial,  on  account  of  the  misconduct  of  the  jury ; 2 
to  set  aside  an  order,  granted   on  a  mere  motion,  which 
set  aside  a  decree ; 3  to  vacate  an  order  setting  aside  the 
service  of  a  subpoena  and  the  subsequent  proceedings  in  a 
foreclosure  suit; 4  to  grant  a  new  trial;5  to  vacate  an  order 
punishing  for  contempt  of  court,  and  to  restrain  further 
steps  in  enforcing  an  injunction ; G  to  vacate  a  nonsuit ; '  to 
a  chancellor  to  hear  and  decide  a  cause  himself,  wherein  he 
had  entered  a  decree  upon  the  findings  of  a  jury.8  The  court 
has  declined  to  enter  into  the  investigation  of  the  merits  of 
a  chancery  case  till  there  was  a  final  judgment  and  the  case 
was  brought  regularly  before  the  court;9  and  it  will  inter- 
fere to  disturb  the  action  of  a  judge  in  equity  only  in  a  case 
of  exigency  demanding  prompt  action.10    A  mandamus  lies 
in  Michigan  to  correct  the  action  of  the  trial  court  in  order- 
ing the  plaintiff  to  give  a  bill  of  the  particulars  of  his  de- 
mand, if  such  order  goes  beyond  what  is  properly  required 
to  be  stated  in  such  a  bill.11    Where,  however,  a  party  was 
convicted  of  murder,  which  judgment  was  reversed  and  a 
new  trial  ordered,  whereupon  the  court  admitted  him  to 
bail,  but  during  the  second  trial  ordered  him  into  custody, 
a  mandamus  was  refused  to  compel  the  trial  court  to  admit 
him  again  to  bail.12 

§  201.  Mandamus  cannot  take  the  place  of  an  appeal 
or  writ  of  error. —  Under  the  general  rule,  that  a  man- 

i  Maclean  v.  Speed,  52  Mich.  257.  *  Scott  v.  Chambers,  62  Mich.  532. 

2  Churchill  v.  Emerick,  56  Mich.  '  Lindsay    v.    Circuit    Judge,   63 
536.  Mich.  735. 

3  York  v.  Ingham,  57  Mich.  421.  8  Brown  v.  Buck,  75  Mich.  274. 

4  Low  v.  Mills,  61  Mich.  35.  9  Chesebro    v.    Montgomery,     70 

5  Gray  v.  Barton,  62   Mich.  186.  Mich.  650. 

The  discretion  of  a  court  in  refusing  10  Detroit,  etc.  R.  R.  v.  Newton,  61 

a  new  trial  will  only  be  interfered  Mich.  33. 

with  to  correct  an  abuse  thereof.  "  Van    Vranken    v.    Gartner,    85 

The  abuse  of  discretion   must  be  Mich.  140. 

gross  and  palpable  to  justify  an  in-  li  Hull  v.  Reilly,  87  Mich.  497 ;  49 

terference  in  any  case.  Detroit,  etc.  N.  W.  Rep.  869. 

Co.  v.  Gartner,  75  Mich.  360. 


250 


MANDAMUS    TO    COURTS. 


[§  201. 


damns  will  not  lie  where  the  law  has  provided  another 
remedy,  this  writ  will  not  lie  to  review  or  correct  a  judg- 
ment or  decree,  where  the  law  provides  a  remedy  by  ap- 
peal or  writ  of  error.1  The  inconvenient  delay  attending 
an  appeal  is  no  ground  for  a  mandamus?  A  mandamus 
will  not  be  allowed  to  usurp  the  functions  of  an  appeal,  a 
writ  of  error  or  a  certiorari?  or  to  anticipate  or  forestall 
judicial  action.4  Because  the  action  of  the  court  was  a  final 
judgment  from  which  an  appeal  lay,  the  writ  of  mandamus 


1  Baltimore,  etc.  R  R,  Ex  parte, 
108  U.  S.  566 ;  Hemphill  v.  Collins, 
117  111.  396 ;  State  v.  Engelman,  86 
Mo.  551;  Kendall  v.  Lassiter,  68 
Ala.  181;  State  v.  Lubke,  85  Mo. 
338;  State  v.  Orphans'  Court 
(Judge),  15  Ala.  740 ;  State  v.  Kin- 
caid,  23  Neb.  641.  In  a  few  in- 
stances this  rule  has  been  departed 
from.  Where  a  judgment  was 
granted  without  proper  notice  to 
the  defendant,  which  the  court  re- 
fused to  set  aside,  mandamus  was 
considered  to  be  the  only  remedy. 
People  v.  Bacon,  18  Mich.  247.  In 
another  case  it  was  held  that  the  is- 
suance of  the  writ  was  optional  with 
the  court.  Lloyd  v.  Chambers,  56 
Mich.  236.  The  writ  was  refused, 
in  one  instance,  because  the  writ  of 
error  would  contain  everything 
necessary  to  determine  the  matter. 
Olson  v.  Muskegon  Circuit  Judge, 
49  Mich.  85.  A  mandamus  was 
considered  to  be  preferable  to  a 
writ  of  error  where  an  indictment 
was  wrongfully  quashed  for  sup- 
posed lack  of  jurisdiction.  People 
v.  Swift,  59  Mich.  529.  A  man- 
damus was  considered  to  be  admis- 
sible to  compel  a  judge  to  dissolve 
a  writ  of  piohibition  (Ray,  Ex  parte, 
45  Ala.  15;  Boothe,  Ex  parte,  64 
Ala.  312),  and  to  reverse  the  action 
of  the  court  improperly  granting 


(North,  Ex  parte,  49  Ala  385)  or 
refusing  (O'Neal  v.  Kelly,  72  Ala. 
559)  a  rehearing.  Where  a  court 
refused  to  entertain  proceedings 
for  contempt  for  disobedience  of 
an  injunction,  holding  erroneously 
that  an  appeal  suspended  the  in- 
junction, a  mandamus  was  allowed 
to  compel  it  to  issue  an  attach- 
ment and  examine  into  the  matter, 
on  the  ground  that  an  appeal  was  not 
speedy  nor  adequate  relief.  Merced 
Min.  Co.  v.  Fremont,  7  Cal.  130. 

2  Perry,  Ex  parte,  102  U.  S.  18a 
To  allow  a  mandamus  for  that  rea- 
son would  overload  the  higher 
court,  and  would  render  the  posi- 
tion of  the  judge  of  the  lower  court 
intolerable.  State  v.  Horner,  16 
Mo.  Ap.  191. 

3  Hoard,  Ex  parte,  105  U.  S.  578 ; 
State  v.  County  Court,  33  W.  Va. 
589 ;  Morgan,  Ex  parte,  2  Chit  250 ; 
Little  v.  Morris,  10  Tex.  263 ;  Ewing 
v.  Cohen,  63  Tex.  482;  State  v. 
Wright,  4  Nev.  119;  Railway  Co., 
Ex  parte,  103  U.  S.  794 ;  Smyth  v. 
Titcomb,  31  Me.  272 ;  People  v.  Dis- 
trict Court,  14  Colo.  396;  State  v. 
Nelson,  21  Neb.  572 ;  State  v.  Cooper 
Co.  Court,  64  Mo.  170;  Jansen  v. 
Davison,  2  John.  Cas.  72 ;  Miller  v. 
Tucker  Co.  Court,  34  W.  Va.  285. 

4  Page  v.  Clopton,  30  Grat.  415. 


§  201.]  MANDAMUS   TO   COURTS.  251 

has  been  refused:  to  set  aside  a  dismissal  for  failure  to  pay- 
costs  pursuant  to  an  order  of  continuance;1  to  amend  a 
judgment  for  the  work  of  a  mechanic  so  as  to  make  it  a  lien 
on  the  land,  as  prayed  in  the  petition;2  to  vacate  a  judg- 
ment entered  nunc  pro  tunc,  the  plaintiff  having  died  after 
the  referee's  report  was  made,  but  before  the  judgment  was 
entered ; 3  to  set  aside  an  order  sending  a  case  for  trial  to 
the  probate  court  on  a  plea  to  the  jurisdiction;4  to  compel 
the  entry  of  a  judgment  for  costs; 5  to  set  aside  a  dismissal 
of  a  rule  to  show  cause  why  an  execution  should  not  issue,6 
and  to  compel  the  granting  of  letters  of  administration  to 
K.  pendente  lite?  Where  a  judgment  for  the  plaintiff  is  ar- 
rested, he  should  apply  for  a  judgment  against  himself,  and 
upon  refusal  to  grant  such  judgment  a  mandamus  will  lie 
to  compel  the  granting  thereof.  Then,  after  the  judgment 
is  granted,  the  plaintiff  can  appeal.8  A  mandamus  will  not 
lie  to  compel  a  court  to  render  a  judgment  of  acquittal  in 
a  criminal  case.  If  the  defendant  is  put  on  trial  again,  the 
matter  can  be  determined  on  appeal.9  A  mandamus  will 
not  lie  to  a  county  judge  to  recall  an  order  made  after  the 
final  judgment,  since  such  order  can  be  brought  up  by  ap- 
peal.10 Where,  however,  such  appellate  proceedings  will 
not  be  an  adequate  remedy,  the  fact  that  they  may  be  re- 
sorted to  will  not  be  a  bar  to  seeking  redress  by  man  dam  us.11 
On  account  of  the  absence  of  other  remedy,  a  mandamus 
will  lie :  to  vacate  an  order  of  discovery  improperly  granted, 
compelling  the  production  and  deposit  of  a  party's  business 
books;12  to  set  aside  an  order  quashing  an  indictment  al- 
leged not  to  be  properly  found ; 13  to  set  aside  the  dismissal 
of  an  appeal  from  a  nonsuit,  since  a  return  to  a  writ  of 

i  Hendree,  Ex  parte,  49  Ala.  360.        &Bostwick,  Ex  parte,  1  Cow.  143. 
2  Schmidt,  Ex  parte.  62  Ala.  252.        »  Cage,  Ex  parte,  45  Cal.  248. 
SKoon,  Ex  parte,  1  Denio,  644  10  People  v.  Moore,  29  Cal.  427. 

*  State  v.  Morgan,  12  La.  118.  «  Merced  Mining  Co.  v.  Fremont, 

5Peralta  v.  Adams,  2  Cal.  594.  7  Cal.  130. 

estate  v.  Judge  Fourth  Dist.,  19       I2pe0ple  v.  Kent  Cir.  Ct  (Judge), 

La.  An.  4.  38  Mich.  351. 
1  Barksdale  v.  Cobb,  16  Ga.  13.  13  People  v.  Swift,  59  Mich.  529. 


252  MANDAMUS   TO    COURTS.  [§§  202,  203. 

error  will  not  disclose  the  whole  proceedings  on  the  special 
motion  to  dismiss ; l  and  to  review  the  circuit  court's  action 
in  ordering  a  justice  of  the  peace  to  make  return  of  a  case 
appealed  from  his  decision,  wherein  his  fees  for  such  return 
have  not  been  paid.2  If  a  writ  of  error  is  informal,  the  rem- 
edy of  the  defendant  in  error  is  to  vacate  the  writ,  and  not 
to  ask  for  a  mandamus  to  carry  the  judgment  into  execu- 
tion.3 Where  through  his  own  negligence  a  party  has  per- 
mitted the  time  allowed  for  taking  his  appeal  to  pass  with- 
out utilizing  it,  he  will  not  therefore  be  allowed  to  review 
the  action  of  the  court  by  a  mandamus.  A  neglect  to  avail 
himself  of  the  remedies  allowed  to  a  person  by  law  is  no 
reason  why  other  remedies  not  allowed  to  him  should  be 
accorded  to  him.4 

§  202.  Mandamus  will  not  always  lie,  though  appeal  or 
writ  of  error  not  allowable. —  Though  it  has  been  said 
that  a  mandamus  will  not  lie  when  an  appeal  or  writ  of 
error  is  admissible,  yet  the  converse  of  this  proposition 
must  not  be  considered  to  be  of  universal  acceptance.  A 
judgment  of  a  court  is  a  judicial  determination,  and  the 
general  rule  is,  that  a  mandamus  does  not  lie  to  review  or 
vacate  the  decision  of  any  tribunal  intrusted  with  delibera- 
tion and  judgment,  and  it  has  been  refused,  though  no 
other  mode  of  review  was  admissible.5  As  has  been  stated 
before,  a  mandamus  will  not  lie  to  review  a  decision  which 
the  law  evidently  intended  to  be  final.6 

§  203.  Mandamus  lies  to  compel  a  court  to  try  a  cause, 
when  it  refuses  to  do  so  upon  the  erroneous  decision 
that  it  has  no  jurisdiction. —  When  a  court  refuses  to  pro- 
ceed and  try  a  cause,  erroneously  deciding  that  it  has  no 
jurisdiction,  it  will  be  compelled  by  the  writ  of  mandamus 

i  People     v.     Wayne     Cir.      Ct.  29  Wis.    79 ;  State    v.  Fuhler,    90 

(Judge),  30  Mich.  98.  Mo.  560. 

2 People      v.      Allegan      Circuit  SEwing   v.  Cohen,  63  Tex.  482; 

(Judge),  29  Mich.  487.  State  v.  Wright.  4  Nev.  119;  People 

3  French,  Ex  parte,  100  U.  S.  1.  v.  Garnett,  130  II!.  340. 

4  State  v.  Sheboygan  Co.  (Sup'rs),  6  See  §g  47,  48,  313. 


§  203.] 


MANDAMUS    TO    COURTS. 


253 


to  assume  jurisdiction  and  proceed  with  the  cause.1  The 
same  rule  applies  in  proceedings  for  contempt  of  court,2  and 
in  criminal  cases.3  The  writ  will  be  granted  when  the  court 
improperly  declines  to  hear  a  cause,  alleging  its  own  in- 
competency or  that  of  the  petitioner.4  Where,  however,  a 
defendant  has  entered  a  plea  to  the  jurisdiction  which  has 
been  sustained,  and  the  action  has  been  dismissed,  a  man- 
damus has  been  refused,  because  there  was  a  final  judgment 
in  such  case  from  which  a  writ  of  error  would  lie,  and  there- 
fore there  was  no  call  for  a  mandamus,  which  ordinarily 
only  issues  when  there  is  no  other  adequate  remedy.5  A 
dismissal  of  a  writ  of  error  by  a  territorial  supreme  court, 
for  failure  to  docket  it  in  time,  wras  not  considered  to  be  a 
final  judgment,  and,  as  neither  a  writ  of  error  nor  an  appeal 
would  lie  from  such  action,  a  mandamus  was  considered  to 
be  the  only  remedy  to  compel  a  hearing  of  the  writ  of 
error.6    "When  a  court  refused  to  take  cognizance  of  an  ap- 


i  People  v.  Swift,  59  Mich.  529 ; 
State  v.  Warner,  55  Wis.  271 ;  Ex 
parte  Parker,  120  U.  S.  737 ;  Ex  parte 
Schollenberger,  96  U.  S.  3G9;  Ex 
parte  Pennsylvania  Co.,  137  U.  S.  451, 
11  S.  C.  R  141 ;  State  v.  Murphy,  19 
Nev.  89 ;  R  v.  Kent  (Just.),  14  East, 
895;  Beguhl  v.  Swan,  39  Cal.  411; 
Ex  parte  Russell,  13  Wall.  664; 
Floral,  etc.  Co.  v.  Rives,  14  Nev. 
431 ;  State  v.  County  Commission- 
ers, 83  Ala.  304 ;  Ex  parte  Dickson, 
61  Ala.  188;  R.  v.  Monmouth,  L.  R. 
5  Q.  B.  251 ;  Kent  v.  Dickinson,  25 
Grat.  817;  State  v.  Hamilton  Co. 
(Commissioners),  26  Ohio  St.  364 
Cowan  v.  Fulton,  23  Grat  579 
Cavanaugh  v.  Wright,  2  Nev.  166 
State  v.  Sachs  (Wash.,  Nov.  12, 
1891).  27  Pac.  Rep.  1075;  Ex  parte 
Henderson,  6  Fla.  279;  Hollou 
Parker,  Petitioner,  131  U.  S.  22i ; 
Ex  parte  United  States,  16  Wall. 
GI)9 ;  Ex  parte  Parker,  120  U.  S.  737 ; 
Territory  v.  Judge  District  Court,  5 


Dak.  275.     Contra,  People  v.  Gar- 
nett,  130  111.  340. 

2  Temple  v.  Superior  Court,  70 
Cal.  211. 

3  State  v.  Laughlin,  75  Mo.  358; 
People  v.  Scates,  3  Scam.  351. 

*  Ex  parte  Russell,  13  Wall.  664. 

5  Ex  parte  Pennsylvania  Co.,  137 
U.  S.  451,  11  S.  C.  R.  141 ;  Ex  parte 
Baltimore,  etc.  R  R,  108  U.  S.  566. 
The  same  conclusion  was  reached 
in  People  v.  Garnett,  130  III.  340. 
The  court  considered  that,  in  dis- 
missing a  case  for  want  of  jurisdic- 
tion, a  court  judicially  determines 
a  question  incident  to  the  proceed- 
ings, and  in  passing  on  it  acts  judi- 
cially, and  that  a  mandamus  would 
not  lie  to  reinstate  the  case.  Though 
there  might  be  no  other  mode  of 
reviewing  the  action  of  the  court, 
yet  a  mandamus  was  not  considered 
to  be  admissible. 

6  Harrington  v.  Holler,  111  U.  S. 
796. 


254  MANDAMUS    TO    COUETS.  [§  204. 

peal,  claiming  that  the  proper  preliminary  steps  had  not 
been  taken,  and  dismissed  it,  a  mandamus  was  granted  to 
compel  the  court  to  hear  the  appeal.1 

§  204.  When  a  court  for  any  cause  improperly  refuses 
to  proceed  iu  a  cause,  mandamus  lies  to  compel  action. 
So,  if  for  any  reason  a  court  refuses  to  act  or  entertain  the 
question  for  its  decision,  and  such  duty  is  enjoined  on  it  by 
law,  a  mandamus  can  be  obtained  to  compel  the  court  to 
consider  the  question.2  In  such  cases  the  court  is  required 
to  proceed,  but  is  not  instructed  to  adopt  any  particular 
conclusion  or  judgment.3  The  writ  has  been  issued  to  com- 
pel a  court  to  proceed  in  a  cause :  which  had  been  remanded 
to  it  from  the  federal  court ; 4  which  had  been  transferred 
to  it  from  another  state  court ; 5  when  it  had  stayed  all  pro- 
ceedings till  its  further  order;6  when  it  had  refused  to  try 
the  cause  till  other  unknown  persons  were  made  parties  to 
it,7  till  a  cause  pending  in  another  court  was  determined,8 
or  till  the  plaintiff  had  filed  an  account ; 9  and  when  it  had 
continued  the  cause  without  a  proper  showing.10  By  this 
writ  it  may  be  stated  generally,  that  a  court  will  be  required 
to  hear  and  determine  a  cause,  or,  if  the  cause  has  been 
heard,  to  render  a  judgment  or  enter  up  a  decree.11  The 
iudo-e  must  render  his  decision  within  a  reasonable  time 

i  Ex  parte  Parker,  120  U.  S.  737.  Pleas  (Judges)  v.  People,  18  Wend. 

2Knarr's  Petition,  127  Pa.  St.  554;  79;  Territory  v.  Judge  Dist.  Ct.,  5 

Hollon  Parker,  Petitioner,  131 U.  S.  Dak.  275. 

221 ;  Austen  v.  Probate  Court,  35  4  Kleiber  v.  MeManus,  06  Tex.  48. 

Mo.  198 ;  People  v.  De  La  Guerra,  43  5  People  v.  Zane,  105  111.  662 ;  State 

Cal.  225 ;  Union  Colony  v.  Elliott,  5  v.  O'Bryan,  102  Mo.  254. 

Colo.  371 ;  Brem  v.   Arkansas  Co.  6  Rhodes  v.  Craig,   21   Cal.   419 ; 

Court,  9  Ark.  240.  Culver  v.  Judge,  57  Mich.  25. 

3  Ex  parte  Shandies,  66  Ala.  134 ;  7  State     v.     Commercial     Court 

Ewing  v.  Cohen,  63  Tex.  482 ;  Board  (Judge),  4  Rob.  227. 

of  Police  v.  Grant,  9  Sm.  &  M.  77 ;  8  Avery  v.  Contra  Costa  Co.  (Sup. 

Jones  v.  Allen,  13  N.  J.  L.  97 ;  Life,  Ct.),  57  Cal.  247 ;  Dunphy  v.  Belden, 

etc.  Co.  v.  Adams,  9  Pet.  571 ;  Ter-  57  Cal.  427 ;  Budd  v.  New  Jersey, 

■  ritory  v.   Ortiz.   1   N.  Mex.  5 ;  Ex  etc.  Co.,  14  N.  J.  L.  467. 

parte  Hoyt,  13  Pet.  279;   State  v.  9  People  v.  Pearson,  1  Scam.  458. 

Kendall,  15  Neb.  262 ;  People  v.  Dis-  10  Dixon  v.  Field,  10  Ark.  243. 

trict  Court,  14  Colo.  396 ;  Oneida  C.  »  State  v.  Williams,  69  Ala,  311 ; 


§  205.]  MANDAMUS   TO   COURTS.  255 

after  the  cause  is  submitted  to  him.1  A  delay  of  five 
months  was  considered  to  be  too  great,  and  the  writ  was 
issued  requiring  the  judge  to  decide  the  cause  at  once.2  The 
writ  has  also  been  issued :  to  compel  the  granting  of  the 
probate  of  a  will; 3  to  compel  the  commissioners  of  a  bank- 
rupt to  issue  a  warrant  for  his  further  examination;4  to 
compel  an  officer  before  whom  a  prisoner  is  brought  on 
habeas  corjncs,  after  commitment  from  a  justice  to  await 
indictment,  to  hear  and  pass  on  the  evidence  offered  touch- 
ing his  guilt;5  to  compel  a  probate  court  to  proceed  and 
settle  the  accounts  of  an  administrator;6  to  compel  the 
reinstatement  of  a  cause  improperly  stricken  from  the 
docket.7  Where,  however,  a  court  puts  off  a  hearing  of  an 
application  only  for  a  reasonable  time,  mandamus  will  not 
lie,  since  there  is  no  abuse  of  the  discretion  of  the  court.8 
A  mandamus  will  not  be  issued  to  compel  a  circuit  court  to 
proceed  and  try  a  cause,  when  an  injunction  has  been  al- 
lowed in  that  or  in  some  other  court  to  restrain  further 
proceedings  in  such  cause ; 9  and  for  a  similar  reason  a  pro- 
bate judge  was  not  required  to  proceed  in  the  settlement 
of  an  estate.10 

§  205.  Disputed  question  whether  appeal  or  man- 
damus lies  upon  the  erroneous  dismissal  of  an  appeal 
hy  the  lower  court. —  Since,  in  order  to  enforce  the  per- 
formance of  a  plain  duty,  a  mandamus  may  issue  to  a  court 
which  improperly  omits  or  declines  to  proceed  in  a  cause, 
it  is  argued  that  the  dismissal  of  an  appeal  is  a  refusal  to 
proceed,  and  that,  therefore,  a  mandamus  will  run  to  com- 
pel a  court  to  entertain  an  appeal  which  it  has  wrongfully 

Miller  v.  Tucker  Co.  Court,  34  W.  estate  ex  rel-  Stow>  51  Ala-  69 ;  Ex 

Va.  285.  parte  Lowe,  20  Ala.  330 ;  State  v. 

1  Com.  v.  McLaughlin,  120  Pa.  St.  Cape  Girardeau  C.  P.  Court,  73  Mo. 
518.  560. 

2  State  v.  Lazarus,  37  La.  An.  610,  » Stone  v.  McCann,  79  Cal.  400. 
614  » People    v.    Muskegon    Cir.    Ct 

s  Justice  and  Jones,  1  Barn.  280.  (Judge),  40  Mich.  63. 

*  Bromley,  In  re,  3  D.  &  K.  310.  10  State  v.  Orphans'  Court  (Judge), 

5  Ex  parte  Mahone,  30  Ala.  49.  15  Ala.  740. 

eShadden  v.  Sterling,  23  Ala.  518. 


256  MANDAMUS    TO    COURTS.  [§  205. 

dismissed.1  On  the  other  hand,  it  is  claimed  that  the  dis- 
missal of  an  appeal  is  a  judicial  action,  and  that  a  mandamus 
does  not  lie  to  review  judicial  action  or  to  correct  judicial 
errors,2  though  there  be  no  other  mode  of  reviewing  such 
ruling-.3  It  is  claimed  that  a  mandamus  does  not  lie  to 
make  a  court  give  a  particular  judgment,  but  merely  to  give 
a  judgment,  and  this  by  its  dismissal  of  the  appeal  it  has 
already  done,  and  that  in  such  cases  a  writ  of  error  will  lie, 
and  that,  such  other  remedy  existing,  it  is  not  proper  to  allow 
a  mandamus.^  With  many  courts  the  right  to  issue  a  man- 
damus in  such  cases  seems  to  turn  on  the  question  whether 
such  dismissal  of  an  appeal  is  to  be  regarded  as  a  final  judg- 
ment, in  which  case  a  mandamus  is  refused,  because  another 
remedy  is  provided  by  statute,  namely,  an  appeal  or  writ  of 
error.5  This  rule  is  adopted  by  the  supreme  court  of  the 
United  States.  In  that  court,  when  an  appeal  has  been  dis- 
missed by  a  lower  court  upon  a  formal  plea  to  the  jurisdic- 
tion, such  dismissal  is  regarded  as  a  final  judgment,  which 
may  be  reviewed  by  appeal  or  writ  of  error,  and  a  man- 
damus to  review  such  action  will  be  refused.6  On  the  other 
hand,  that  court  has  granted  a  writ  of  mandamus  to  compel 
a  circuit  court  to  reinstate  and  hear  an  appeal  in  a  bank- 
ruptcy case  from  a  district  court,7  and  to  compel  a  court  to 
reinstate  an  appeal  which  it  had  wrongfully  refused  to  en- 
tertain on  account  of  alleged  irregularities  in  perfecting  the 
appeal.8  The  weight  of  authority  seems  to  be  that  a  writ 
of  mandamus  will  lie  in  all  cases  to  compel  the  reinstate- 

i  Jones  v.  Allen,  13  N.  J.  L.  97 ;        « Com.    v.     Philadelphia     C.     P. 

Ten  Eyck  v.  Farlee,  1G  N.  J.  L.  348 ;  (Judges),  3  Binn.  273. 
Freas  v.   Jones,    1G  N.  J.  L.   358;        5  State   v.   Smith,    19  Wis.    531; 

Adams  v.  Mathis,  18  N.  J.  L.  310.  Goheen  v.  Myers,  18  B.  Mon.  423. 

2  Ewing  v.  Cohen,  63  Tex.  482 ;  6  Baltimore,  etc.  R.  R,  Ex  parte, 
People  v.  Dutchess  C.  Pleas,  20  108  U.  S.  566;  Railway  Co.,  Ex 
Wend.  658 ;  State  v.  Wright,  4  Nev.  parte,  103  U.  S.  791. 

119 ;  People  v.  Weston,  28  Cal.  639 ;  '•  Insur  Co.  v.  Comstock,  16  Wall. 

Goheen  v.  Myers,  18  B.  Mon.  423 ;  258. 

State  v.  Smith,  105  Mo.  6;  16  S.  W.  »Hollon  Parker,   Petitioner,   131 

Rep.  1052.  U.  S.  221. 

3  People  v.  Garnett.  130  111.  340. 


§  206.]  MANDAMUS    TO    COURTS.  257 

ment  of  an  appeal,  except  when  another  remedy,  as  appeal 
or  writ  of  error,  is  provided  by  statute,  or  the  law  evidently 
contemplates  that  the  action  of  the  court  which  dismissed 
the  appeal  shall  be  final.1 

§  206.  When  an  appeal  is  wrongfully  dismissed  for 
matters  occurring  subsequent  to  its  docketing,  it  may  be 
reinstated  on  the  docket  by  a  mandamus.—  THien  an  ap- 
peal has  been  wrongfully  dismissed  for  matters  occurring 
subsequent  to  its  docketing,  as  for  lack  of  prosecution  or 
for  errors,  which  the  party  should  have  been  allowed  to 
correct  by  amendment,  a  mandamus  has  been  granted  to 
reverse  such  action.2  In  those  states  where  such  action  is 
considered  to  be  a  final  judgment,  an  appeal  or  writ  of 
error  would  be  the  proper  remedy,  provided  there  be  an 
appellate  court  with  authority  to  review  such  final  judg- 
ments. The  existence  of  such  a  remedy  is  considered  to  be 
a  good  reason  why  a  writ  of  mandamus  should  be  refused. 
"Where  a  court  wrongfully  dismissed  an  appeal  on  account 
of  matters  occurring  subsequent  to  its  docketing,  a  man- 
damus was  issued  to  compel  the  reversal  of  such  action. 
The  power  to  issue  the  writ  in  that  case  was  claimed  by 
virtue  of  a  superintending  control  over  all  other  courts, 
given  by  the  constitution  to  the  higher  court,  though  in 
the  case  in  hearing  such  court  had  no  appellate  jurisdiction. 
This  superintending  control  was  held  to  be  as  broad  as  the 
■exigency  of  the  case  demanded.  The  court  reviewed  the 
question  of  the  legality  of  the  issue  of  the  writ  of  man- 
damus in  such  cases,  and  considered  the  law  on  the  subject 
to  be  in  a  state  of  "  painful  vibration."  3 


1  Among  the  cases  which  have  27  Mich.  303;  Garrabrant  v.  Mo- 
allowed  the  writ  in  such  cases  may  Cloud,  15  N.  J.  L.  4C2;  Ten  Eyckv. 
be  cited :  Hart  v.  Circuit  Judge,  56  Farlee,  1  J.  Harr.  (N.  J.),  269,  348 ; 
Mich.  592;  People  v.  Cir.  Judge  Thorpe  v.  Keeler,  3  Harr.  (N.  J.), 
Third  Circuit,  19  Mich.  296 ;  State  v.  251;  Brown,  Ex  parte,  116  TJ.  S. 
Bergen  C.  Pleas  (Judges),  2  Penn.  401. 

737.  s  state  v.  Philips,  97  Mo.  S3L 

2  People  v.  Wayne  Cir.  Ct  (Judge), 

17 


258  MANDAMUS    TO   COUKTS.  [§§  207,  208, 

§  207.  When  a  mandamus  lies  to  compel  a  court  to 
hear  a  cause  when  it  has  declined  to  hear  it  by  reason 
of  an  erroneous  decision  on  some  preliminary  question. — 

When  a  court  has  refused  to  go  into  the  merits  of  the  action 
on  an  erroneous  construction  of  some  question  of  practice 
preliminary  to  the  whole  case,  a  mandamus  will  issue  to 
compel  it  to  go  on  and  try  the  case.1  In  fact  the  erroneous 
decisions  of  a  court  upon  preliminary  questions,  which  in- 
duce it  to  decline  to  proceed  further,  may  be  reviewed  by 
this  writ,  if  such  questions  are  questions  of  law,  and  also 
when  such  questions  are  questions  of  fact,  provided  the  gen- 
eral nature  of  the  duties  whose  performance  is  sought  by 
this  writ  are  considered  to  be  ministerial,  and  the  law  did 
not  intend  the  decision  of  the  lower  court  on  such  pre. 
liminary  matters  to  be  final.2 

§  208.  Mandamus  to  compel  the  allowance  of  an  ap- 
peal.—  Where  a  party  is  entitled  to  an  appeal  from  a  decree 
or  judgment  against  him,  he  may  by  the  assistance  of  the 
writ  of  mandamus  compel  the  allowance  of  such  an  appeal, 
the  duties  of  the  court  in  such  case  being  merely  minis- 
terial.3 The  court  will  be  required  by  this  writ  to  do  all 
acts  necessary  to  make  the  right  of  appeal  efficacious :  to 
enter  a  nunc  pro  tunc  order  as  of  date  of  the  motion ; 4  to 
make  a  record  of  the  allowance  of  an  appeal  from  a  judg- 
ment of  the  probate  court ; 5  to  allow  an  appeal  from  the 
probate  of  a  codicil  to  a  will ; 6  to  make  out  and  deliver  a 
transcript  for  the  appeal  or  writ  of  error ; 7  and  to  entertain 
an  application  for  the  examination  of  an  appeal  bond,  and, 
if  found  sufficient,  to  grant  a  supersedeas.8    It  is  no  objec- 

i  State  v.  Ellis,  41  La.  An.  41.  Wall.  752 ;  Louisville  Lid.   School 

2  gee  §§   44,  45,  46,  47  and  48,    v.  Louisville  (City),  88  Ky.  584. 
where  the  question  is  reviewed.  4  McCreary  v.  Rogers,  35  Ark.  298. 


3  Ware  v.  McDonald,  62  Ala.  81 
People  v.  Prendergast,  117  111.  588 
State  v.  Murphy,  41  La.  An.  526 


5  Beebe  v.  Lockert,  6  Ark.  422. 

6  Greathouse  v.  Jameson,  3  Colo. 
397. 


Hall  v.  Audrain  Co.  (Court),  27  Mo.        "•  Rodgers  v.  Alexander,  35  Tex. 
829;   United    States  v.    Gomez,  3    116. 

s  State  v.  Lewis,  71  Mo.  170. 


§  209.]  MANDAMUS    TO    COUKTS.  259 

tion  that  the  time  for  the  doing  of  the  act  by  the  judge 
or  court  has  expired,  if  the  application  was  made  in  proper 
time.  A  party  is  not  to  be  deprived  of  such  rights  by  the 
negligence  of  public  officers.1 

§  209.  Mandamus  will  not  lie  to  a  court  wlieu  there 
is  another  remedy. —  Since  a  writ  of  mandamus  issues  be- 
cause there  is  no  other  adequate  remedy,  and  justice  and 
good  government  require  a  redress  of  the  wrong,  a  court 
will  not  be  required  by  this  writ  to  take  any  action  when 
another  remedy  is  provided.  A  mandamus  will  not  lie  to 
compel  a  court  to  set  aside  its  order,  which  set  aside  an 
office  judgment  and  allowed  a  party  to  plead,  because  the 
relator  can  ask  for  an  execution  on  that  judgment,  and  upon 
the  refusal  to  grant  his  request  can  appeal  to  the  appellate 
court.2  In  committing  a  party  to  jail,  or  in  requiring  bond 
for  his  appearance  to  answer  to  a  charge  of  crime,  the  judge 
or  court  acts  judicially,  and  the  correctness  of  the  order  or 
judgment  cannot  be  inquired  into  by  a  mandamus.  A  man- 
damus will  not  lie  to  compel  a  court  or  magistrate  to  dis- 
charge a  person  alleged  to  be  improperly  detained  under 
process  therefrom.  A  habeas  corpus  is  the  usual  remedy.3 
A  mandamus  will  be  refused :  to  compel  a  judge,  whose 
brother-in-law  is  to  be  tried  before  him,  to  interchange 
with  another  judge,  when  the  law  provides  that  a  lawyer 
may  be  selected  to  try  the  case ; 4  to  compel  a  circuit  court 
to  grant  an  appeal  when  the  appellate  court  can  grant  it ; 5 
to  compel  a  court  to  approve  the  security  for  a  writ  of 
error  when  a  justice  of  the  appellate  court  can  do  it ; a 
to  compel  the  court  to  withdraw  its  order  not  allowing  a 
transcript  to  be  made,  though  an  appeal  has  been  granted, 
till  the  appeal  bond  is  filed,  since  a  writ  of  error  will  take 
up  the  transcript  as  effectually  as  an  appeal.7 

i  State  v.  Lewis,  71  Mo.  170.  «  Byrne  v.  Harbison,  1  Mo.  225. 

2Goolsby,  Ex  parte,  2  Grat  575.  6  Virginia  Com'rs,  Ex  parte,  112 

3  Graves,  Ex  parte,  61  Ala.  381.  U.  S.  177. 

i  State  v.  Judges,  29  La.  An.  785.  7  State  v.  Engleman,  45  Mo.  27. 


260  MANDAMUS   TO    COURTS.  [§§  210,  211. 

§  210.  Litigants  cannot  by  agreement  create  duties 
which  courts  may  he  compelled  by  mandamus  to  per- 
form.— Since  the  writ  of  mandamus  lies  only  to  enforce 
duties  imposed  by  law,  litigants  cannot  by  their  agreements 
create  such  duties  for  courts  and  ask  for  the  assistance  of 
this  writ  to  compel  the  courts  to  perform  them.  A  man- 
damus will  not  lie,  where  there  is  no  law  creating  the  duty : 
to  compel  a  court  to  change  the  venue  of  a  criminal  case  on 
the  agreement  of  the  parties ; l  to  compel  a  court  to  sign 
the  report  of  the  referees  by  virtue  of  a  stipulation  of  the 
litigants,  that  referees  should  be  appointed  by  the  court  to 
determine  certain  disputed  facts,  whose  report,  when  filed, 
should  be  the  finding  of  the  court  and  should  be  signed  by 
the  judge ; 2  to  compel  a  chancellor  to  dismiss  a  cause  on 
motion  in  pursuance  of  a  written  agreement  between  the 
parties,3  or  to  compel  a  court  to  strike  a  cause  from  the 
docket  on  motion,  on  the  ground  that  it  has  been  discon- 
tinued by  a  submission  to  arbitration.4 

§  211.  Special  instances  where  a  mandamus  was  not  re- 
quired or  would  have  been  inefficacious.—  A  writ  of  man- 
damus will  not  run  to  a  court  acting  under  a  special  commis- 
sion, which  has  expired  by  its  own  limitation.5  Where  a  non- 
resident was  arrested  and  required  to  give  bail,  which  he 
did,  a  mandamus  to  discharge  his  bail  was  refused  ;  if  the 
arrest  was  valid  no  wrong  was  done,  and  if  the  arrest  was 
invalid  his  bail  was  not  liable.6  Where  property  was 
paid  into  the  probate  court  in  condemnation  proceedings 
and  wrongfully  detained  by  the  judge  from  the  party  en- 
titled to  it,  it  was  considered  that  the  judge  held  the  prop- 
erty as  an  individual,  and  that  an  action  on  his  bond  was 
the  remedy,  and  that  a  mandamus  would  not  lie  to  compel 
payment  till  an  action  on  the  bond  had  proved  unavailing.7 

1  Dennis,  Ex  parte,  48  Ala.  304.  5  People  v.  Monroe  O.  and  Ternri- 

2  State  v.  McArthur,  23  Wis.  427.     ner,  20  Wend.  108. 

a  Rowland,  Ex  parte,  26  Ala.  133.        6  Small,  Ex  parte,  25  Ala.  74. 
«  Garlington,   Ex  parte,  26  Ala.        '  State  v.  Meiley,  22  Ohio  St.  534. 
170. 


§  212.]  MANDAMUS   TO   COURTS.  261 

§  212.  Mandamus  to  justices  of  the  peace.—  The  writ  of 

mandamus  has  often  been  issued  to  compel  justices  of  the 
peace  to  perform  their  ministerial  duties  or  to  proceed  to 
take  action  in  judicial  matters.  By  this  writ  a  justice  has 
been  compelled :  to  issue  summons  against  certain  parties 
for  combining  and  conspiring  to  break  the  peace ; x  to  hear  and 
determine  an  information  brought  before  them ; 2  to  allow 
a  change  of  venue  in  a  suit  when  the  law  had  been  com- 
plied with ; 3  to  hear  an  appeal ; 4  to  assess  the  damages  on  the 
dismissal  of  a  case  in  replevin;5  to  render  judgment  on  the 
verdict  of  a  jury,fi  but  not  when  the  verdict  is  void ; 7  to 
make  correct  entries  in  his  docket  according  to  the  real 
facts ; 8  to  render  a  judgment  of  dismissal ; 9  to  proceed  with 
the  preliminary  examination  of  one  charged  with  an  of- 
fense ; 10  to  tax  the  costs  on  the  dismissal  of  a  suit ;  "  to  com- 
pel the  allowance  of  the  examination  of  a  garnishee,  which 
he  refused  to  allow  on  the  ground  that  his  judgment  against 
the  principal  was  invalid,  when  such  judgment  was  in  re- 
ality legal;12  to  make  a  true  record  of  the  judgment  ren- 
dered and  furnished  a  copy  thereof; 13  to  issue  an  execution 

1 Q.  v.  Adamson,  1  Q.  B.  D.  201.  3  State  v.  Clayton,  34  Mo.  Ap.  563. 

2  Rex  v.  Tod,  1  Stra.  530;  Q.  v.  *King  v.  Suffolk  (Just),  1  B.  & 

Brown,  7  Ellis  &  B.  757 ;  People  v.  A.  640. 

Barnes.  66  Cal.  594.     A  return  that  5  Johnson  v.  Dick,  69  Mich.  108. 
they  had  heard  and  dismissed  the  6  Foreman  v.  Murphy,  Penu.  1024. 
information,   because  it  was  filed  7  Moore  v.  State,  72  Ind.  358. 
after  the  time  limited  by  the  stat-  »  State  v.  Van  Ells,  69  Wis.  19. 
ute,  was  considered  to  be  good,  as  9  Anderson  v.  Pennie,  32  Cal.  265. 
showing  that  the  information  bad  10  People  v.  Barnes,  66  Cal.  594. 
been    heard.      Q.    v.    Mainwaring,  "  State  v.  Engle,  127  Ind.  457. 
Ellis,  B.  &  C.  474.    Where  it  was  »2  State  v.  Eddy,  10  Mont.  311. 
doubtful  from  the  evidence  offered  "  Smith  v.  Moore,  38  Conn.  105.    A 
whether  a  prior  action  for  the  same  court  will  refuse  to  issue  a  man- 
cause  was  dismissed  on  the  merits  damns  to  correct  the  entry  of  his 
or  for  error  in  law,  upon  the  decis-  judgment,  if  the  application  is  made 
ion  whereof  depended  the  right  to  a  long  time  after  its  rendition.   Gar- 
bring  the  suit  then  pending,  the  nett  v.  Stacy,  17  Mo.  601.     An  entry 
court  required  the  justices  to  set  by  a  justice  of  the  peace  in   his 
aside  their  dismissal  of  such  suit  docket  of  the  time  of  presentation 
and  to  rehear  it.     Q.  v.  Bridgman,  to  him  of  an  appeal  bond  is  a  de- 
15  L.  J.  N.  S.  44,  M.  C.  termination  by  the  proper  tribunal 


3 


202  MANDAMUS    TO    COURTS.  [§  212. 

on  his  judgment,1  even  though  the  judgment  is  erroneous, 
provided  it  is  not  void ; 2  to  issue  a  writ  of  restitution  in  ex- 
ecution of  a  judgment  in  favor  of  a  plaintiff  under  the  land- 
lord and  tenant  act,  when  the  appeal  bond  in  the  case  was 
not  filed  within  the  time  prescribed  by  the  rules  of  court ; " 
to  issue  an  execution  on  his  judgment,  though  his  judgment 
has  been  reversed  on  appeal,  when  by  law  no  appeal  was 
allowed ; 4  to  issue  a  supersedeas  to  his  execution  upon  the 
defendant's  filing  his  schedule  of  exempt  property;5  to 
grant  an  appeal  upon  compliance  by  the  appellant  with  the 
requirements  of  the  law,6  when  the  law  had  furnished  no 
other  mode  of  obtaining  the  allowance  of  the  appeal ; 7  to 
certify  a  case  upon  appeal  to  the  higher  court  with  the 
proper  papers ; 9  to  make  up  his  record  in  due  form  in  an 
appeal  case,  and  to  furnish  the  appellant  with  a  copy  in 
due  form  of  the  recognizance  taken,  though  entered  on  his 
docket  only  by  a  minute  entry;9  to  sign  a  bill  of  excep- 
tions as  provided  by  law ; 10  to  approve  a  proper  bond,  offered 
for  an  appeal ; "  and  to  keep  his  office  in  the  precinct  for 
which  he  was  elected.12  Where  a  justice  of  the  peace  has  a 
discretion  as  to  his  action,  a  mandamus  will  not  lie,  as  in 
accepting  the  report  of  referees  in  a  cause  and  entering  up 
judgment  thereon,13  or  in  refusing  to  transfer  a  cause.14     A 

of  the  fact  of  the  time  when  the        5  Smith  v.  Ragsdale,  36  Ark.  297. 

game  was  presented  for  purposes        6  Martin,  Ex  parte,  5  Ark.  371; 

of  appeal.     It  thus  involves  the  as-  Morris,   Ex    parte,   11    Grat.    292; 

certainment  and  record  of  a  ques-  Levy  v.  Inglish,  4  Ark.  65. 

tion  of  fact,  the  entry  of  which  can-        '  state  v.  McAuliffe,  48  Mo.  112 ; 

not  be  regarded  as  a  purely  minis-  Chicago,  etc.  R  R.   v.  Franks,   55 

terial  act     A  mandamus  to  make  a  Mo.  325. 

justice  of  the  peace  correct  such  an        8  Orange  (Town)  v.  Bill,   29  Vt, 

entry  was  refused.     Mooney  v.  Ed-  442 ;  People  v.  Harris,  9  Cal.  571. 

wards,  51  N.  J.  L.  479.  9  Ballou  v.  Smith,  29  N.  H.  530. 

i  Terlmne  v.  Barcalow,  11 N.  J.  L.       w  Ohio  v.  Wood,  22  Ohio  St.  537. 
38 ;  King  and  Montague,  1  Barn.  72 ;       "  Cox  v.  Rich,  24  Kans.  20. 
Hamilton  v.  Tutt,  65  Cal.  57.  12  State  v.  Shropshire,  4  Neb.  411. 

*Hogue  v.  Fanning,  73  CaL  54  13  Farwell,  Petition  of,  2  N.  H.  123. 

3  Kirk  v.  Cole,  3  MacArthur,  71.  14  People  v.  Hubbard,  22  CaL  34. 

*  Laird  v.  Abrahams,  15  N.  J.  L  22. 


§  212.]  MANDAMUS   TO   COURTS.  2G3 

mandamus  will  not  lie  to  compel  a  justice  of  the  peace  to 
treble  the  damages  in  a  judgment  in  forcible  entry  and  de- 
tainer, since  there  is  a  remedy  by  appeal.1  "Where  a  mag- 
istrate has  by  judgment  committed  the  accused  to  jail,  he 
cannot  be  required  to  examine  the  witnesses  in  the  case 
and  reduce  their  testimony  to  writing,  as  he  has  no  longer 
any  jurisdiction  of  the  case.2  When  an  appeal  from  a  jus- 
tice of  the  peace  is  pending  in  the  circuit  court,  the  ques- 
tion of  the  jurisdiction  of  the  circuit  court  can  be  determined 
there,  and  will  not  be  determined  by  a  mandamus  to  com- 
pel the  justice  to  issue  an  execution,  because  a  mandamus 
is  only  issued  when  there  is  no  other  remedy.3  A  magis- 
trate who  has  convicted  a  person  will  not  be  compelled  to 
levy  the  penalty  of  such  conviction,  when  it  is  shown  by 
the  return  that  the  conviction  was  illegal  because  there 
was  no  law  making  the  act  charged  an  offense.4  The  courts 
will  not  compel  a  magistrate  to  do  an  act,  where  they  see  a 
legal  probability  that  an  action  may  be  maintained  against 
him  for  such  action,5  especially  where  no  indemnity  has 
been  tendered  to  him.6 

i  Early  v.  Mannix,  15  CaL  149.  King  v.  Mirehouse,  2  Ad.  &  E.  632 ; 

2  State  v.  Miller,  1  Lea,  596.  King  v.  Broderip,  5  B.  &  C.  239,  7 

3  People  v.  Huntoon,  71  111.  536.  D.  &  R.  861 ;  King  v.  Halls,  3  A.  & 

4  King  v.  Robinson,  2  Smith  (K  E.  494 

B.),  274.  o  King  v.  Somersetshire  (Just),  4 

5  King  v.  Greame,  2  Ad.  &  E.  615 ;    N.  &  M.  394. 


CHAPTER  15. 

WHAT  COUETS  ISSUE  THE  WRIT  OF  MANDAMUS. 

§  213.    Courts  of  general  common-law  jurisdiction  issue  writs  of  man- 
damus. 

214.  In  issuing  writs  of  mandamus  courts  exercise  original  or  appel- 

late jurisdiction. 

215.  Issue  of  writs  of  mandamus  by  appellate  courts. 

216.  Issue  of  mandamus  by  the  United  States  supreme  court 

217.  Issue  of  writs  of  mandamus  by  subordinate  federal  courts. 

218.  Mandamus  by  federal  courts  to  levy  a  tax  to  pay  their  judg- 

ments. 

§  213.  Courts  of  general  common-law  jurisdiction  issue 
writs  of  mandamus. —  The  power  of  any  court  to  issue  the 
writ  of  mandamus  is  generally  settled  by  constitutional 
provision  or  by  statute.  In  the  absence  of  any  such  pro- 
vision, such  power  is  considered  to  be  lodged  in  that  court 
whose  jurisdiction  corresponds  with  that  of  the  court  of 
king's  bench.  Such  court  is  the  highest  court  of  original 
jurisdiction,1  which  courts  are  generally  designated  as  cir- 
cuit or  district  courts.2  The  power  to  issue  the  writ  is  said 
to  be  incident  to  superior  courts.3  Since  the  power  of  is- 
suing this  writ  is  by  the  common  law  lodged  in  the  court, 
it  has  been  denied  to  the  judge  during  the  vacation  of  the 
court.4 

§  214.  In  issuing  writs  of  mandamus  courts  exercise 
original  or  appellate  jurisdiction. —  In  issuing  a  writ  of 
mandamus  a  court  may  be  exercising  its  original  jurisdic- 

1  Kendall  v.  United  States,  12  Pet     6  Fla,  279 ;  Judd  v.  Driver,  1  Kans. 
524;  Chumasero  v.  Potts,  2  Mont.     455. 
242.  8  state  v.  Todd,  4  Ohio,  351 ;  Grier 

8  Nichols  v.  Comptroller,  4  Stew.     v.  Shackleford,  3  Brev.  491. 
&  Port  154 ;  Henderson,  Ex  parte,        *  Grant,  Ex  parte,  6  Ala.  91.    See 

Bean  v.  People,  6  Colo.  98. 


§§  215,  216.]       WHAT    COURTS    ISSUE    WKIT    OF   MANDAMUS.       265 

tion,  or  it  may  be  exercising  its  appellate  or  supervisory 
jurisdiction.  When  a  writ  of  mandamus  is  issued  to  an 
officer  it  is  an  exercise  of  original  jurisdiction ;  but  its  issu- 
ance to  an  inferior  court  is  an  exercise  of  appellate  or  su- 
pervisory jurisdiction.1 

§  215.  Issue  of  writs  of  mandamus  by  appellate 
courts. —  In  many  cases,  where  the  highest  appellate  court 
can  only  issue  the  writ  of  mandamus  in  aid  of  its  jurisdic- 
tion, it  has  refused  to  issue  the  writ  except  in  cases  which 
directly  affected  the  exercise  of  its  appellate  powers.2  Other 
courts,  which  were  given  a  general  superintending  and  su- 
pervisory control  over  inferior  courts,  have  claimed  a  right 
to  issue  a  mandamus  to  such  courts  as  broad  as  the  exigency 
of  the  case.3  When  both  the  appellate  and  the  inferior 
courts  have  original  jurisdiction  in  mandamus  proceedings, 
the  appellate  courts,  owing  to  their  crowded  dockets,  will 
compel  litigants  in  the  first  instance  to  apply  for  the  writ 
to  the  inferior  courts,  unless  in  a  case  of  far  more  than  or- 
dinary magnitude  and  importance.4 

§  216.  Issue  of  mandamus  by  the  United  States  su- 
preme court. —  The  United  States  supreme  court,  except  in 
a  few  cases  which  seldom  occur,  has  by  the  provisions  of 
the  United  States  constitution  only  appellate  jurisdiction, 
and  it  is  not  in  the  power  of  congress  to  confer  original 

1  Crane,  Ex  parte,  5  Pet  190 ;  Peo-  trial  in  the  lower  court  the  higher 
pie  v.  Bacon,  18  Mich.  247 ;  Tawas,  court  cannot  exercise  its  appellate 
etc.  E.  R.  v.  Iosco  Cir.  Judge,  44  jurisdiction.  State  v.  Hall,  6  Baxt. 
Mich.  479.  3 ;  King  v.  Hampton,  3  Hay  w.  59. 

2  State  v.  Judge  Fourth  Dist.,  17  A  mandamus  to  sign  a  bill  of  ex- 
La.  An.  282 ;  State  v.  Elmore,  6  ceptions  is  considered  to  be  an  exer- 
Cold.  528 ;  State  v.  Biddle,  36  Ind.  cise  of  appellate  jurisdiction.  State 
138 ;  Whitfield  v.  Greer,  3  Baxt.  78 ;  v.  Hall,  3  Cold.  255. 

Ing  v.  Davey,  2  Lea,  276 ;  Grigsby  3  state  v.  Philips,  97  Mo.  331 ;  Mc- 

v.   Bowles,  79  Tex.  138 ;  Daniel  v.  Creary  v.  Rogers,  35  Ark.  298. 

Warren    Co.   Court,   1   Bibb,    496;  *  State  v.  Cooper  Co.   Court,   64 

Westbrook  v.  Wicks,  36  Iowa,  382.  Mo.  170 ;  State  v.  Breese,  15  Kans. 

The  writ  has  been  refused  to  compel  123 ;  State  v.  Juneau  Co.  (Sup'rs),  38 

the  court  to  proceed  to  try  a  cause  Wis.  554 ;  McBride  v.  Grand  Rapids 

whereas  such  action  would  seem  to  (Com.  Council),  32  Mich.  360. 
warrant  its  issue,  since  without  a 


2GG  WHAT   COURTS    ISSUE    WKIT   OF    MANDAMUS.  [§  21 G. 

jurisdiction  on  it;  consequently  that  court  cannot  ordina- 
rily issue  an  original  writ  of  mandamus}  Such  writs  when 
issued  must  be  in  aid  of  its  appellate  jurisdiction.  Where 
a  circuit  court  dismisses  an  appeal  from  the  district  court, 
erroneously  supposing  it  has  no  jurisdiction,  a  mandamus 
will  go  to  the  circuit  court  to  hear  and  decide  the  case, 
provided  the  amount  involved  will  permit  an  appeal  to  the 
supreme  court,  for  every  suitor  has  a  right  in  a  proper  case 
to  the  judgment  of  the  supreme  court.2  If,  however,  the 
suit  can  in  no  case  be  taken  to  the  supreme  court,  because 
the  amount  involved  is  not  sufficient  for  its  appellate  juris- 
diction, that  court  will  issue  no  mandamus  relative  to  it, 
since  it  will  not  be  in  aid  of  its  appellate  jurisdiction;3  nor 
will  it  issue  the  writ  in  other  cases,  when  it  is  not  necessary 
for  the  exercise  of  its  appellate  jurisdiction.4  A  mandamus 
was  asked  from  the  federal  supreme  court  to  compel  a  state 
supreme  court  to  revoke  its  order  disbarring  an  attorney. 
It  was  held  that  that  court  could  only  issue  that  writ,  ex- 
cept in  a  few  cases  where  it  had  by  the  constitution  orig- 
inal jurisdiction,  as  an  exercise  of  its  appellate  jurisdiction 
or  in  aid  of  its  appellate  jurisdiction.  In  the  case  specified 
the  writ  could  not  be  an  exercise  of  appellate  jurisdiction, 
because  the  act  of  1789,  and  also  section  688,  Revised  Stat- 
utes, only  authorized  the  court  to  issue  the  writ  to  courts 
appointed  by,  or  to  persons  holding  office  under  the  author- 
ity of,  the  United  States ;  nor  could  such  issue  be  claimed 
to  be  in  aid  of  any  appellate  jurisdiction.  The  application 
for  the  writ  was  denied.5  This  court  has,  however,  de- 
cided that  it  can  issue  a  mandamus  to  an  inferior  fed- 
eral court  to  restore  to  practice  an  attorney  who  has  been 
improperly  suspended  or  disbarred.6    In  this  case,  where 

iMarbury  v.  Madison,  1  Cranch,  SBurdett,  In  re,  127  U.  S.  771; 

137 ;    United  States  v.  Black,   128  Newman,  Ex  parte,  81  U.  S.  152. 

U.  S.  40 ;  Riggs  v.  Johnson  Co.,  6  «  Hoyt,  Ex  parte,  13  Pet.  279. 

Wall.  166.  5  Green,  In  re,  141  U.  S.  325;  12 

2  Insurance  Co.  v.  Comstock,  16  Sup.  Ct.  R  114. 

Wall.  258 ;  Bradstreet,  Ex  parte,  7  6  Bradley,  Ex  parte,  7  Wall  364, 
Pet  634 


§  217.]  WHAT   COUETS    ISSUE    WKIT   OF   MANDAMUS.  2G7 

this  matter  was  fully  considered  the  court  decided  that  an 
order  disbarring-  an  attorney  is  not  reviewable  by  a  writ 
of  error,  it  not  being  a  judgment  in  the  sense  of  the  law 
for  which  that  writ  will  lie.  Yet  the  court  granted  the 
writ,  relying  on  certain  former  decisions.  Those  decisions 
relate  to  signing  a  bill  of  exceptions,1  and  reinstating  and 
trying  causes  improperly  dismissed  for  supposed  lack  of 
jurisdiction;2  to  signing  the  record  of  a  judgment  rendered 
in  a  case  by  the  preceding  judge ; 3  to  allowing  an  appeal 
and  compelling  the  production  of  the  transcript,4  and  to 
enforce  a  decree  against  which  a  supersedeas  had  been  erro- 
neously allowed,  pending  an  appeal  on  a  bond,  which  was 
not  sufficient  in  amount  to  authorize  a  supersedeas.5  In 
those  cases  it  might  be  held  that  the  writ  could  properly 
issue  in  aid  of  the  appellate  jurisdiction  of  the  court,  but  in 
a  disbarment  proceeding  there  is  no  question  of  appellate 
jurisdiction,  and  the  court  expressly  says  that  in  such  cases 
no  writ  of  error  will  lie.  Though  the  issue  of  the  writ  in  a 
disbarment  proceeding  called  forth  a  dissenting  opinion, 
yet  the  necessity  for  the  writ  in  such  cases  will  probably 
cause  the  ruling  to  be  sustained  in  the  future,  though  it  be 
illogical.6  The  new  circuit  courts  of  appeal,  lately  created 
by  act  of  congress,  can  have  no  greater  authority  to  issue 
the  writ  of  mandamus  than  the  supreme  court  of  the  United 
States,  since  they  are  merely  authorized  to  assume  the 
jurisdiction  of  the  latter  court  in  certain  cases,  thereby  re- 
lieving the  latter  court  of  much  of  the  overwhelming  busi- 
ness pressing  on  it. 

§  217.  Issue  of  writs  of  mandamus  by  subordinate  fed- 
eral courts. —  The  jurisdiction  of  the  United  States  courts, 

1  Crane,  Ex  parte,  5  Pet.  190.  tion  are :  Burr,  Ex  parte,  9  Wheat. 

2Bradstreet,  Ex  parte,  7  Pet.  634.  529 ;  Secombe,  Ex  parte,  19  How.  9. 

3  Life,  etc.  Co.  v.  Wilson,  8  Pet.  Another  court  which  could   only 
291.  issue  the  writ  of  mandamus  in  aid 

4  United  States  v.  Gomez,  3  Wall,  of  its  appellate  jurisdiction  decided 
752.  that  it  had  no  power  to  issue  a  writ 

5  Stafford  v.  Union  Bank,  17  How.  of  mandamus  to  restore  an  attor- 
275.  ney     who     had    been    disbarred. 

6  The  earlier  decisions  on  this  ques-  Walls  v.  Palmer,  64  Ind.  493. 


2GS  WHAT   COURTS    ISSUE    WRIT    OF    MANDAMU8.  [§  217. 

except  the  supreme  court  within  the  limits  fixed  by  the  con- 
stitution of  the  United  States,  is  determined  by  act  of  con- 
gress. The  federal  circuit  courts  in  the  various  states  are 
not  authorized  to  issue  a  mandamus  in  original  proceedings. 
Congress  has  not  yet  granted  them  that  authority,  though 
it  has  the  power  to  do  so.1  They  can  issue  writs  of  man- 
damus only  in  aid  of  a  jurisdiction  already  acquired.2  On 
account  of  the  absence  of  the  power  to  issue  an  original 
writ  of  mandamus,  and  as  not  involving  a  jurisdiction  al- 
ready acquired,  applications  therefor  to  the  federal  circuit 
courts  have  been  refused :  to  compel  the  register  of  a  fed- 
eral land-office  to  issue  a  certificate  of  the  purchase  of  cer- 
tain land ; 3  to  compel  a  district  court  to  vacate  a  rule  allow- 
ing certain  amendments  to  the  record;4  to  order  state 
taxing  officers  to  levy  a  tax  to  pay  certain  bonds ; 5  to  com- 
pel the  auditor  of  a  state  to  issue  a  certificate  in  order  to 
recover  certain  taxes  improperly  paid ; 6  and  to  compel  a 
postmaster  to,  receive  and  transmit  through  the  mails  a 
certain  publication  as  second  and  not  third  class  matter, 
though  the  circuit  court  is  given  express  jurisdiction  of  all 
cases  arising  under  the  postal  laws.7  The  circuit  court  can 
issue  the  writ  of  mandamus  to  district  courts  only  when 
necessary  for  the  exercise  of  their  own  jurisdiction,  as  to 
compel  the  rendition  of  a  judgment  or  decree.8  The  only 
court  excepted  from  this  limited  jurisdiction  is  the  circuit 
court  of  the  District  of  Columbia,  which  is  now  the  supreme 
court  of  the  District  of  Columbia ; 9  also  by  act  of  March  3, 

i  Kendall  v.  United  States,  12  Pet.  U.S.    187;     Davenport   v.   Dodge 

524 ;  Riggs  v.  Johnson  Co.,  6  WalL  (County),  105  U.  S.  237 ;  Bath  Co.  v. 

166 ;  American,  etc.  Co.  v.  Bell,  etc.  Amy,  13  Wall.  244 

Co.,  1   McCrary,    175 ;  Mclntire  v.  6  Graham  v.  Norton,  15  Wall.  427. 

Wood,  7  Cranch,  504.  7  United  States  v.  Pearson,  32  Fed. 

2  Rosenbaum  v.  Bauer,  120  U  S.  Rep.  309. 

450;  Davenport  v.  Dodge  (County),  *  Smith  v.  Jackson,  1  Paine,  453. 

105  U.  S.  237 ;  Labette  Co.  Com'rs  v.  9  United  States  v.  Kendall,  12  Pet 

United  States,  112  U.  S.  217.  524 ;  Riggs  v.  Johnson  Co.,  6  Wall. 

3  Mclutire  v.  Wood,  7  Cranch,  504.  166 ;  Weber  v.  Lee  Co.,  6  Wall.  210 ; 
*  Smith  v.  Jackson,  1  Paine.  453.  United  States  v.  Black,  128  U.  S.  40. 
5  Greene  (County)  v.  Dame1,   102 


§  218.]  WHAT   COURTS    ISSUE    WRIT    OF   MANDAMUS.  209 

1873,  the  federal  circuit  courts  are  given  jurisdiction  by 
mandamus  to  compel  the  Union  Pacific  Railroad  Company 
to  operate  its  road  as  required  by  law.1 

§  218.  Mandamus  by  federal  courts  to  levy  a  tax  to  pay 
their  judgments.—  When  a  judgment  has  been  obtained  in 
a  federal  circuit  court  against  a  municipality,  a  mandamus 
may  be  issued  by  such  court  to  compel  the  municipal  au- 
thorities to  levy  and  collect  a  tax  to  pay  such  judgment. 
The  issue  of  a  mandamus  in  such  case  is  simply  a  mode  of 
executing  the  judgment,  and  not  an  original  proceeding.2 
It  is  a  proceeding  ancillary  to  the  judgment,  and  a  substi- 
tute for  the  ordinary  process  of  execution,  which  is  gen- 
erally not  allowed  to  run  against  municipal  corporations.3 
But  since  the  writ  of  mandamus  creates  no  new  rights  or 
duties,  the  municipal  officers  can  only  be  required  to  per- 
form such  duties  as  the  state  laws  impose  on  them.4  If  they 
return  that  they  have  already  levied  all  the  tax  the  law 
allows  them  to  do,  such  return  is  a  sufficient  answer  to  the 
writ.5  Any  limitation  on  the  power  of  the  municipal  offi- 
cers to  levy  a  tax  should  be  urged  in  the  suit  on  the  bonds 
before  a  judgment  thereon  is  obtained,  and  not  in  the  pro- 
ceedings to  compel  the  levy  of  a  tax  to  pay  the  judgment.6 
Where,  however,  the  relator  must  go  behind  his  judgment 
to  show  the  remedy  pertaining  to  the  bonds  relative  to  the 
power  to  tax  for  their  payment,  the  court  cannot  decline  to 
take  cognizance  of  the  fact  that  the  bonds  are  utterly  void, 
and  that  no  such  remedy  exists  for  their  payment.7     The 

1  United  States  v.  Union  Pacific  the  municipality,  but  it  may  issue 
R.  R,  2  Dill.  527.  against  the  officers  whose  duty  it  is 

2  Memphis  (Merchants)  v.  Mem-  to  levy  the  tax.  Labette  County 
phis  (City),  9  Baxt  76;  Greene  (Com'rs)  v.  United  States,  112  U.  S. 
(County)  v.  Daniel,  102  U.  S.  187 ;  217.     See  §  237. 

Davenport  v.  Dodge  (County),  105        *  Graham  v.  Parham,  32  Ark.  676. 
U.  S.  237.  5  Supervisors  v.  United  States.  18 

3  Riggs  v.  Johnson  County,  6  Wall.     Wall.  71. 

166 ;  Weber  v.  Lee  County,  6  Wall.  6  United  States  v.  New  Orleans,  98 

210 ;  Walkley  v.  Muscatine  (City),  6  U.  S.  381. 

Wall.  481 ;  United  States  v.  Oswego  i  Brownsville  v.  Loague,  129  U.  S. 

(Town;,  28  Fed.  Rep.  55.     The  man-  493. 

damus  is  not  required  to  be  against 


270  WHAT   COURTS    ISSUE   WEIT   OF   MANDAMUS.  [§  218. 

court  must  use  the  agencies  established  by  law  for  the  im- 
position and  collection  of  such  taxes,  and  therefore  cannot 
appoint  its  marshal  to  do  so,  unless  the  law  authorizes  such 
action.1  Jurisdiction  of  a  court  is  not  exhausted  by  the  ob- 
taining of  a  judgment,  but  continues  till  the  judgment  is 
satisfied,  while  the  federal  courts  are  supreme  in  their 
sphere ;  consequently  any  attempts  in  the  state  courts  to 
prevent  the  collection  of  a  tax  ordered  by  a  federal  court 
to  pay  a  judgment  obtained  therein,  as  by  enjoining  the 
officers  from  levying  the  tax,2  or  by  reversing  on  certiorari 
the  order  of  the  proper  authority  levying  the  tax,3  will  be 
disregarded,  and  the  proper  officers  will  be  compelled  to 
levy  and  collect  the  tax. 

1  Rees  v.  Watertown  (City),  19  (Sup'rs),  2  Biss.  77 ;  Mayor  v.  Lord, 
Wall.  107 ;  Barkley  v.  Levee  Com-  9  WalL  409 ;  Riggs  v.  Johnson  Co., 
missioners,  93  U.  S.  258.  These  de-  6  Wall.  166 ;  Weber  v.  Lee  Co.,  6 
cisions  overrule  Welch  v.  St  Gene-  Wall.  210. 

vieve,  1  Dill.  130,  and  Lansing  v.  » United  States  v.  Silverman,  4 
City  Treasurer,  1  Dill.  523.  Dill.  224 

2  United  States   v.  Lee   County 


CHAPTER  16. 

RELATIONS  BETWEEN  FEDERAL  AND  STATE  COURTS  AND 
OFFICERS,  RELATIVE  TO  THE  USE  OF  THE  WRIT  OF  MAN- 
DAMUS. 

§  219.    Federal  courts  can  issue  a  mandamus  to  all  state  officers,  except 
judicial  officers,  but  state  courts  cannot  to  federal  officers. 
220.    Mandamus  in  connection  with  the  transfer  of  causes  from  the 
state  to  the  federal  courts. 

§  219.  Federal  courts  can  issue  a  mandamus  to  all 
state  officers,  except  judicial  officers,  but  state  courts 
cannot  to  federal  officers.—  Owing  to  the  peculiar  rela- 
tions between  the  United  States  government  and  the  states, 
questions  have  often  arisen  concerning  the  right  of  the 
federal  courts  to  issue  the  writ  of  mandamus  to  state  courts 
and  state  officers,  and  of  state  courts  to  issue  the  writ  to 
federal  courts  and  federal  officers.  The  laws  of  the  United 
States  are  the  supreme  law  of  the  land,  and  the  states  have 
no  control  over  the  federal  officers,  who  can  only  be  con- 
trolled by  the  power  that  created  them ;  consequently  a 
state  court  cannot  issue  a  mandamus  to  a  federal  officer.1 
Nor  can  the  states  restrain  either  the  process  or  the  pro- 
ceedings of  the  national  courts.2  The  United  States  courts 
are  invested  with  authority  to  decide  causes  in  the  same 
manner  as  the  state  courts  are,  and  involving  the  rights 
and  remedies  of  parties  under  state  laws,  and  are  allowed 
to  use  the  same  remedies  as  the  state  courts.  They  can 
therefore  issue  the  writ  of  mandamus  to  state  officers,  so 
far  as  the  federal  congress  has  given  them  authority.  They 
can  issue  the  writ  of  mandamus  to  all  state  officers  except 

1  McClung  v.  Silliman,  6  Wheat.  2  Riggs  v.  Johnson  Co.,  6  Wall 

598;Laddv.  Tudor,  3  W.  &M.  325;  166;    United    States     v.    Lee    Co. 

Kendall  v.  United  States,  12  Pet.  (Sup'rs),  2  Biss.  77. 
524 


272  FEDEKAL    AND    STATE    COURTS.  [§  220. 

judicial  officers.1  The  United  States,  owing  to  the  complete 
independence  of  the  states,  can  impose  on  a  state  officer,  as 
such,  no  duty  whatever  and  compel  him  to  perform  it.2  The 
state  courts,  being  courts  of  general  jurisdiction,  may  by 
mandamus  require  state  courts  or  officers  to  discharge  any 
duty  whatever  incumbent  on  them.  They  have  required  local 
officers  to  levy  taxes  to  pay  judgments  obtained  in  the  fed- 
eral courts 3  to  pay  to  the  judgment-creditor  money  collected 
on  a  tax  levied  to  pay  his  judgment,  though  such  judgment 
was  obtained  in  a  federal  court,4  and  to  erase  certain  mort- 
gages then  on  file  in  the  recorder's  office,  in  accordance 
with  an  order  of  a  national  district  court,  sitting  in  bank- 
ruptcy.5 A  mandamus  will  not  lie  to  a  state  judge  to  issue 
a  subpoena  requiring  parties  to  appear  and  testify  before 
the  register  and  receiver  of  a  federal  land  office.  It  would 
be  an  intrusion.6 

§  220.  Mandamus  in  connection  with  the  transfer  of 
causes  from  the  state  to  the  federal  courts.—  Congress 
has  provided  by  its  legislation  that  certain  suits  filed  in  the 
state  courts  may  under  certain  circumstances  be  transferred 
to  the  federal  courts,  and  that  if  such  suits  be  wrongfully 
transferred  to  the  federal  courts,  those  courts  shall  remand 
them  to  the  state  courts  for  trial.  In  case  either  court  shall 
fail  in  its  duty,  the  question  arises  whether  such  duty  is 
ministerial  and  subject  to  be  enforced  by  the  writ  of  man- 
damus. It  is  generally  held  that  such  duties  are  partly 
judicial,  and  that  an  appellate  state  court  will  not  issue  a 
mandamus  to  compel  an  inferior  state  court  to  transfer  a 
cause  to  a  federal  court.7     The  proper  remedy  is  to  appeal 

iRiggs  v.  Johnson  Co.,  6  Wall.  '  State  v.  Curler,  4  Nev.  445 ;  Peo- 

166.  pie  v.  Jackson  Cir.  Court  (Judge), 

2  Kentucky  v.  Denison,  65  U.  S.  21  Mich.  577;  Campbell  v.  Walleu, 
66.  Mart.  &  Yerg.   266;   Francisco  v. 

3  State  v.  Beloit,  20  Wis.  79.  Manhattan  L  Co.,  36  Cal.  283 ;  Hough 

4  Brown  v.  Crego,  32  Iowa,  498.  v.   Western    T.   Co.,    1    Biss.   425 ; 

5  Conrad  v.  Prieur,  5  Rob.  49;  Orosco  v.  Gagliardo,  22  CaL  83; 
Diggs  v.  Prieur,  11  Rob.  54;  Ben-  Cromie,  In  re,  2  Biss.  160;  Gordon 
jamin  v.  Prieur,  8  Rob.  193.  v.   Longest,   16    Pet.   97.      Contra, 

'Boom  v.  De  Haven,  72  CaL  280.    Brown  v.   Crippen,  4  Hen.  &  M. 


§  220.]  FEDERAL    AND    STATE    COURTS.  273 

from  the  final  judgment  to  the  state  supreme  court,  and 
thence  take  a  writ  of  error,  if  necessary,  to  the  federal  su- 
preme court.1  To  the  United  States  circuit  courts  has  not  been 
given  the  power  to  issue  a  mandamus  to  compel  such  trans- 
fer.2 When  a  transfer  has  been  granted  to  the  federal  court. 
a  mandamus  to  the  state  court  to  proceed  and  try  the  case 
will  be  refused,  because  in  making  such  transfer  the  court 
acted  in  a  judicial  capacity.3  It  has,  however,  been  held 
that  an  appeal  may  be  taken  from  the  order  transferring  the 
case,  and  that  a  mandamus  may  issue  to  compel  the  allow- 
ance of  such  appeal.4  An  original  mandamus  proceeding 
cannot  be  transferred  from  a  state  to  a  federal  court.  It 
was  held  by  a  divided  court  that  the  circuit  court  was  lim- 
ited by  statute  to  the  issue  of  writs  of  mandamus  in  aid  of 
a  jurisdiction  already  acquired,  and  that  the  removal  acts 
did  not  extend  to  mandamus  proceedings,  which  were  not 
civil  actions  in  the  sense  in  which  those  words  were  used  in 
that  statute.5  When  a  transfer  to  the  federal  court  has 
been  refused,  but  the  defendant  has  filed  the  papers  in  the 
federal  court,  a  mandamus  will  issue  to  compel  the  state 
court,  upon  its  refusal,  to  proceed  with  the  case,  though  the 
answer  shows  that  a  nonsuit  was  entered  in  the  federal 
court  against  the  plaintiff,  and  an  injunction  issued  against 
his  prosecuting  a  petition  for  a  mandamus.  Courts  of  last 
resort  cannot  be  deprived  of  their  power,  to  control  the  in- 
ferior state  courts  in  the  discharge  of  their  duties,  by  the 
federal  courts  by  injunction  or  other  process  against  liti- 

173 ;    State    v.    Fairfield   C.    Pleas.  Cal.  283 ;  State  v.  Combination,  eta 

15   Ohio  St.   377.      The  last  court  Co.,  4  Nev.  445. 

holds  that  a  mandamus  to  transfer  2 Hough  v.  Western  T.  Co.,  1  Biss, 

the  cause,  after  the  rendition  of  a  425 ;   Cromie,   In    re,   2  Biss.    1G0. 

judgment,  is  not  proper,  but  that  Contra,    Spraggins    v.   Humphries 

a  writ  of  error  is  then  appropriate.  Co.  Court,  Cooke,  160. 

Shelby  v.  Hoffman,  7  Ohio  St.  450.  3  Francisco  v.  Manhattan  I.  Co., 

i  Hough  v.  Western  T.  Co.,  1  Biss.  36  Cal.  283. 

425 ;    Cromie,   In  re,   2  Biss.   160 ;  *  State  v.  Judge  Thirteenth  Dist. 

Gordon    v.   Longest,    16    Pet    97 ;  23  La  An.  29. 

Francisco  v.  Manhattan  I.  Co.,  36  » Rosenbaum  v.  Bauer,  120  U.  S. 

450. 
18 


274  FEDERAL    AND    STATE   COURTS.  [§  220. 

gants.1  A  mandamus  will  not  lie  to  compel  a  federal  circuit 
court  to  remand  a  case  claimed  to  have  been  erroneously 
transferred  to  it.  In  such  case  the  remedy  is  by  appeal  or 
writ  of  error,  if  the  amount  involved  is  not  too  small  for 
an  appeal  or  writ  of  error.  If  the  amount  involved  is  too 
small  to  allow  an  appeal  or  writ  of  error,  the  judgment  of 
the  federal  circuit  court  is  final.2  Where  a  federal  court  re- 
manded a  case  to  the  state  court,  since  it  was  not  a  final 
judgment  from  which  error  would  lie,  a  mandamus  was  al- 
lowed to  compel  the  federal  court  to  proceed  with  the  case ; 3 
but  under  the  act  of  1887  it  has  been  decided  that  a  man- 
damus will  not  lie  in  such  a  case,4  the  intention  of  the  law 
being  that  the  remand  should  in  no  way  be  disturbed. 

i  White  v.  Holt,  20  W.  Va.  792.  4  Pennsylvania  Co.,  Ex  parte,  137 

2  Hoard,  Ex  parte,  105  U.  S.  578.    U.  S.  451. 

3  Railroad  v.  Wiswall,  23  Wall. 
507. 


CHAPTER  IT. 

APPLICATION  TO  OFFICER  TO  PERFORM  HIS  DUTY. 

§  221.     Mandamus  is  never  issued  unless  the  respondent  is  in  default  in 
the  performance  of  his  duty. 

222.  A  demand  must  be  made  before  the  writ  will  issue. 

223.  A  refusal  to  comply  must  be  shown  before  the  writ  will  issue. 

224.  When  personal  demand  is  unnecessary. 

225.  A  positive  refusal  to  perform  the  duty  is  not  always  necessary  — 

Conduct  may  be  equivalent  to  a  refusal. 

226.  A  demand  cannot  be  made  before  the  time  has  expired  wherein 

the  officer  is  allowed  to  do  tbe  act. 

227.  Will  a  mandamus  lie  when  the  power  to  do  the  act  for  that  year 

ceases  with  the  occurrence  of  the  default? 

§  221.  Mandamus  is  never  issued  unless  the  respondent 
is  in  default  in  the  performance  of  his  duty.—  Since  the 
law  presumes  that  every  one  will  do  his  duty,  this  extraor- 
dinary writ  will  not  issue  till  the  party  sought  to  be  con- 
strained has  failed  to  do  his  duty.  It  will  not  be  issued  in 
anticipation  of  such  failure,  but  he  must  be  in  actual  default.1 
It  is  immaterial  how  strong  the  presumption  may  be  that 
the  party  at  the  proper  time  will  refuse  to  perform  his  duty. 
No  threats  or  previous  determination  not  to  perform  his 
duty  will  take  the  place  of  an  actual  default.2  When  a 
judge,  in  continuing  a  criminal  case,  stated  that  the  prisoner 
was  not  entitled  to  a  jury  and  should  be  tried  without  one, 
the  writ  was  refused  because  he  was  not  in  default,  the  case 
not  having  been  tried.3  In  one  case,  to  prevent  delay  and 
because  the  question  was  new,  a  special  rule  was  granted 

iMcConihe  v.  State,  17  Fla.  238;  Fla.  263;  Condit  v.  Newton  Co.,  25 

Cutting,  Ex  parte,  94  U.  S.  14 ;  State  Ind.  422. 

v.  Gracey,  1 1  Nev.  223 :  State  v.  Ris-  *  State  v.  Jefferson  Co.  (Com'rs),  17 

ing,    15   Nev.  164;  Public   Schools  Fla.  707;  State  v.  Carney,  3  Kans.  88; 

(Com'rs)  v.  County  Com'rs,  20  McL  People  v.  Dowling,  55  Barb.  197. 

449;  Lake  Co.  (Com'rs)  v.  State,  24  3  state  v.  Rising,  15  Nev.  164. 


276  APPLICATION    TO    OFFICER.  [§§  222,  223. 

that,  in  case  the  judges  below  should  refuse  to  grant  the 
judgment  asked,  then  at  the  next  term  of  court  they  should 
show  cause  why  a  mandamus  should  not  issue  to  them  to 
proceed  to  judgment.  The  court  admitted  that,  strictly 
speaking,  the  relators  were  not  entitled  to  the  rule  till  after 
a  default  on  the  part  of  the  respondents  in  the  discharge  of 
their  duties.1 

§  222.  A  demand  must  be  made  before  the  writ  will 
jSSUe. —  A  demand  must  be  made  on  the  proper  officer  to 
perform  the  duty  desired  before  a  writ  of  mandamus  will 
be  issued  to  compel  him  to  discharge  such  duty.2  It  would 
be  an  abuse  of  justice  to  convict  one  of  non-feasance  or 
misdemeanor  in  neglecting  his  official  duty,  when  he  has 
not  refused  to  do  what  may  be  required,  and  to  mulct  him 
in  costs  when  he  is  not  in  default.3  This  writ  only  issues  as 
a  matter  of  necessity  and  when  there  is  no  other  means  of 
obtaining  the  discharge  of  the  duty  incumbent  on  the  offi- 
cer. Consequently  this  writ  will  not  be  issued  to  compel 
an  officer  to  do  an  act  which  he  has  not  been  asked  to  do.4 
The  demand  should  be  for  the  specific  thing  which  ought 
to  be  done,  untrammeled  by  any  condition  which  may  make 
the  refusal  qualified  instead  of  absolute.5 

§  223.  A  refusal  to  comply  must  be  shown  before  the 
writ  will  issue. —  As  a  corollary  of  the  statement  in  the 
prior  section  that  a  demand  must  first  be  made,  it  should 
be  added  that  a  refusal  to  comply  with  the  demand  must 
also  be  shown.''     A  mandamus  to  make  a  county  subscribe 

i  Fish  v.  Weatherwax,  2  John.  Cas.  3  State  v.  Gibbs,  13  Fla.  55. 

215.  i  People  v.   Hyde  Park,    117  111. 

2  State   v.   Davis,  17  Minn.  429;  462;  Le  Roux   v.  Judge,  45  Mich. 

State   v.   Schaack,   28   Minn.    358;  416. 

Kemerer  v.  State,  7  Neb.  130;  Mon-  5  Macoupin  Co.  Court  v.  People, 

roe  Co.    v.  Lee  Co.,  36  Ark.  378;  58  111.  191. 

Com.  v.  Pittsburgh,  34  Pa.  St.  496 ;  6  Com.  v.  Pittsburgh,  34  Pa.  St. 

Talcott  v.  Harbor  Com'rs,  53  Cal.  496;  United  States  v.  Boutwell,  17 

199;    United    States    v.    Elizabeth  Wall.  607 ;  State  v.  Governor,  25  N. 

(City),  42  Fed.  Rep.  45 ;  Hardee  v.  J.  L.  331 ;  Lewis  v.  Henley,  2  Ind. 

Gibbs,  50  Miss.  802 ;  Q.  v.  Amber-  332 ;  Bryson  v.  Spaulding,  20  Kans. 

gate,  eto.  R  R,  17  Ad.  &  K  (N.  S.)  427. 
362. 


§  224:.]  APPLICATION    TO   OFFICER.  277 

for  stock  of  a  railroad  company,  as  provided  by  law,  was 
refused  for  failure  of  the  company  to  produce  its  subscrip- 
tion books  and  ask  the  county  to  subscribe.1  Nothing  short 
of  an  absolute  refusal  of  a  judge  to  sign  a  bill  of  excep- 
tions will  authorize  the  issuance  of  a  mandamus  to  compel 
him  to  sign  it.2  Where  it  is  not  clear  that  there  has  been 
a  refusal,  the  writ  will  be  denied.  A  corporator  requested 
the  privilege  of  inspecting  the  corporate  books.  The  man- 
aging committee  asked  time  to  consider  the  request.  This 
was  not  considered  to  be  a  sufficient  refusal  to  warrant  a 
mandamus^6  A  county  judge  was  asked  to  sign  and  seal  a 
case  for  appeal.  He  made  a  suggestion  on  the  subject  and 
the  applicant  went  off.  This  was  no  absolute  refusal  and 
did  not  justify  a  mandamus.  The  applicant  should  have 
declined  the  suggestion  and  insisted  that  he  wanted  the 
case,  as  there  stated,  signed  and  sealed.4 

§  224.  When  personal  demand  is  unnecessary.—  W hen 
it  is  said  that  a  demand  to  do  the  act  and  a  refusal  thereof 
must  exist  prior  to  an  application  for  a  mandamus  to  com- 
pel the  performance  of  the  act  desired,  it  must  not  be  con- 
sidered that  such  demand  must  in  all  cases  be  personal,  or 
that  such  refusal  must  always  be  of  the  same  nature.  When 
the  duty  sought  to  be  enforced  is  of  a  private  nature,  affect- 
ing only  the  right  of  the  relator,  a  personal  demand  is  nec- 
essary;5 and  it  is  also  necessary,  if  the  duty  sought  to  be 
enforced  is  of  such  a  character  that  it  could  not  be  ex- 
pected to  be  performed  till  demanded.6  Decisions,  that 
there  must  be  an  express  and  distinct  demand  or  request 
to  perform,7  must  be  confined  to  such  cases.  Where,  how- 
ever, the  duty  is  of  a  purely  public  nature,  wherein  no  in- 

lOroville,  etc.    R.  R  v.  Plumas    (Town)  (III..  May  11,  1891),  27  N.  E. 
Co.,  37  Cal.  354.  Rep.  757 ;  Ingerman  v.  State  (Ind, 

*  State  v.  Redd,  68  Mo.  106.  May  1,  1891),  27  N.  E.  Rep.  499. 

3  King  v.  Wilts,  etc.  Navigation  e  Humboldt  Co.  v.  Churchill  Co. 

(Prop'rs),  3  Ad.  &  E.  477.  (<  Jom'rs).  6  Nev.  30. 

*  Irving  v.  Askew,  20  L.  T.  R.  (X.  T  United   States    v.    Boutvvell,    17 
g_)  584.  Will,  (id?:  Price  v.  Riverside,  etc. 

5  People  v.  Education  Board,  127    Co.,  56  Cal.  431. 
111.  613;    People  v.  Mount  Morris 


•278  APPLICATION    TO   OFFICER.  [§  224. 

dividual  right  or  duty  is  concerned,  and  where  there  is  no 
one  person  upon  whom  either  a  right  or  duty  devolves  to 
make  a  demand  of  performance,  an  express  demand  or  re- 
fusal is  not  necessary.     The  law  does  not  require  a  useless 
thing.     It  points  out  the  whole  duty  with  time  and  place. 
It  stands  in  place  of  a  demand,  and  neglect  or  omission  to 
perform  in  place  of  a  refusal.1    Since  in  such  a  case  it  is  not 
necessary  to  make  a  demand,  an  allegation  in  the  alterna- 
tive mandamus  that  the  demand  was  made  and  a  denial 
thereof  in  the  return  do  not  raise  an  issue.2     A  demand  was 
considered  unnecessary :  when  the  school  board  had  excluded 
colored  children  from  certain  schools ; 3  when  the  board  of 
councilmen  failed  to  order  an  election  to  fill  a  vacancy  in 
their  number; 4  when  an  execution  against  a  municipal  cor- 
poration was  retained  nulla  bona  and  the  municipality  failed 
to  levy  a  tax  to  pay  it ; 5  when  the  board  of  trustees  of  a 
corporation  failed  to  call  a  meeting  for  the  annual  election 
of  trustees;6  when   the  police  jury  of  a  county  failed  for 
ma-^y  months,  after  the  site  for  a  court-house  had  been  prop- 
erly selected,  to  levy  a  tax  as  required  by  law  to  pay  for  its 
construction;7  when  the  city  council  failed  to  levy  a  tax 
as  required  by  law  to  pay  the   interest  and  principal  of 
the  bond  upon  which  the  relator  had  obtained  judgment.8 

i  State    v.   Bailey,   7  Iowa,   390  ;  Rep.  7 ;  State  v.  Racine  (City  Coun- 

People  v.  Education  Board,  127  111.  cil),   22  Wis.    258 ;    Columbia    Co. 

613 ;  State  v.  Rahway,  33  N.  J.  L.  (Com'rs)  v.  King,  13  Fla.  451. 

1 10 ;  Com.  v.  Allegheny  Co.  (Com'rs),  2  Lyman  v.  Martin,  2  Utah,  136. 

37  Pa.  St  237;  State  v.  Marshall  Co.  3people  v.  Education  Board,  127 

(Judge),  7  Iowa,  186 ;  Chumasero  v.  111.  613. 

Potts,  2  Mont.  242;  State  v.  Weld,  *  State  v.  Rahway,  33  N.  J.  L.  110. 

39  Minn.  426 ;  Fisher  v.  Charleston  5  State    v.   Slaveus,   75  Mo.   508 ; 

(City),    17   W.  Va.   595;    Fisher   v.  Fisher  v.  Charleston  (City),  17  W.Va. 

Charleston  (Mayor),  17  W.  Va.  G28;  595;  Fisher  v.  Charleston  (Mayor), 

Humboldt     Co.    v.    Churchill    Co.  17  W.  Va.  628. 

(Com'rs),   6    Nev.   30;    Lee    Co.    v.  «  State  v.  Wright,  10  Nev.  167. 

State,  36  Ark.  276 ;  People  v.  Mount  7  Watts  v.  Carroll  (Police  Jury),  1 1 

Morris  (Town)  (III.,   May  11,   1891),  La.  An.  141. 

27  N.  E.  Rep.  757 ;  State  v.  Wright,  B  State  v.  Racine  (Com.  Council), 

U)   Nev.    167;  Smith    v.    Lawrence  22  Wis.  258. 
(S.   Dak.,  June  19,  1891),  49  N.  W. 


8  225.]  APPLICATION    TO    OFFICER.  279 

Where,  however,  the  proper  mode  of  performance  of  the 
duty  is  doubtful,  a  demand  specifying  the  proper  mode  will 
be  required  before  the  mandamus  will  be  granted.  When 
a  mandamus  is  asked  by  a  private  party  to  compel  a  public 
officer  to  keep  his  books  in  a  certain  way  in  order  to  con- 
form to  the  statute,  he  must  have  requested  the  officer  to 
do  so  before  he  asks  for  a  mandamus,  because  there  are 
often  differences  of  opinion  as  to  the  construction  of  a  stat- 
ute, and  the  officer  should  have  an  opportunity  to  act  on 
the  relator's  construction  before  being  involved  in  litiga- 
tion.1 

§  225.  A  positive  refusal  to  perform  the  duty  is  not 
always  necessary  —  Conduct  may  be  equivalent  to  a  re- 
fusal.— A  positive  refusal  is  also  not  necessary  in  all  cases 
before  a  writ  of  mandamus  will  lie  to  compel  the  perform- 
ance of  a  duty.  The  law  never  demands  a  vain  thing,  and 
when  the  conduct  and  action  of  the  officer  is  equivalent  to 
a  refusal  to  perform  the  duty  desired,  it  is  not  necessary 
to  go  through  the  useless  formality  of  demanding  its  per- 
formance. Anything  showing  that  the  defendant  does  not 
intend  to  perform  the  duty  is  sufficient  to  warrant  the 
issue  of  a  mandamus?  Proof  of  a  refusal  by  a  municipal- 
ity to  levy  a  tax  to  pay  the  interest  on  its  bonds  was  con- 
sidered to  be  unnecessary,  when  it  had  countermanded  an 
assessment  therefor,  and  in  its  return  to  the  alternative  writ 
justified  such  action ; 3  it  was  also  considered  to  be  unnec- 
essary when  it  failed  to  make  any  provision  for  suoh  pay- 
ment.4 A  demand  or  refusal  to  receive  the  relators  as 
members  of  the  board  was  not  necessary  to  obtain  a  writ 
of  mandamus  to  receive  them  as  such,  after  the  passage  by 
the  board  of  a  resolution  declaring  the  election  to  be  void 
and  allowing  the  sitting  members  to  retain  their  seats  till 


i  State  v.  Eberhardt,  14  Neb.  201.  *  State  v.  Clinton  Co.  (Com'rs),  6 

2  Com.  v.  Pittsburgh,  34  Pa.  St.  Ohio  St  280 ;  Com.  v.  Pittsburgh 
496.  (Select    Coun.),    84     Pa.    St.    496; 

3  Com.  v.  Allegheny  (Com'rs),  37  Columbia  Co.  (Com'rs)  v,  King,  13 
Pa,  St  277.  Fla,  451, 


\ 


280  APPLICATION    TO    OFFICER.  [§  225. 

the  courts  passed  on  the  matter.1  A  failure  to  perform  a 
duty  imposed  on  an  officer  on  the  proper  day,  without  even 
the  pretense  of  a  reason  therefor,  is  equivalent  to  a  refusal, 
and  a  mandamus  may  be  properly  awarded  to  compel  its 
performance.2  A  failure  for  twelve  years  to  perform  the 
peremptory  duty  of  providing  a  house  of  correction  dis- 
tinct from  the  common  gaol  authorizes  a  mandamus  to 
provide  the  proper  building.3  When  a  board  of  supervisors 
allow  their  session  to  expire  without  acting  on  a  claim  pre- 
sented to  them  for  allowance,  a  mandamus  will  lie  to  com- 
pel them  to  audit  it,  since  such  action  relative  to  mandamus 
proceedings  must  be  regarded  as  a  rejection  of  the  claim.1 
Where  a  vestry  was  called  upon  to  lay  a  tax  rate  for  the 
support  of  churches,  but  adjourned  from  time  to  time  with- 
out acting  in  the  matter,  evidently  with  a  view  to  avoid 
laying  the  rate,  such  action  was  considered  for  mandamus 
proceedings  to  be  equivalent  to  a  refusal.5  Where  a  judg- 
ment had  been  recovered  against  a  town,  and  its  record 
showed  clearly  an  intention  not  to  levy  a  tax  to  pay  it,  a 
demand  to  levy  a  tax  for  that  purpose  was  considered  un- 
necessary.6 Where  the  directors  of  a  corporation,  whose 
charter  required  an  annual  election  of  its  directors,  post- 
poned the  election  for  six  months,  it  was  considered  that 
such  action  was  an  open  and  public  declaration  of  their  de- 
termination not  to  perform  a  plain  duty,  and  it  was  unnec- 
essary, before  applying  for  a  mandamus,  to  make  a  demand 
on  them  to  appoint  judges  and  tellers  for  such  election.7 
Where  a  city  council  was  by  law  required  to  levy  a  tax 
annually  sufficient  to  pay  off  the  interest  on  certain  bonds 
issued  by  the  city,  a  failure  of  the  city  council  to  make  a 
levy,  though  requested  to  do  so,  was  equivalent  to  a  refusal.8 

1  State  v.  Hudson  Co.  (Freehold-  5  Q.  v.  St  Margaret's  Vestry,  8  A. 
pis),  35  N.  J.  L.  269.  &  E.  889. 

2  Knox  Co.  (Board  Convrs)  v.  As-  6  Palmer  v.  Stacy,  44  Iowa,  340. 
pinwall,  24  How.  376.  ^  Mottu  v.  Primrose,  23  Md.  482. 

3  Com.  v.Hampden  (Just),  2  Pick.  SMaddox    v.   Graham,    2    Mete. 
414.  (Ky.)56. 

4  People  v.  Richmond  Co.  (Sup'rs), 
20  N.  Y.  252. 


I  225.]  APPLICATION   TO   OFFICER.  281 

So  the  refusal  of  a  board  of  supervisors  by  resolution  to 
levy  a  tax  to  pay  a  demand  allowed  by  them,  till  the  owner 
thereof  had  complied  with  certain  conditions,  which  they 
illegally  imposed,  was  equivalent  to  a  refusal  to  levy  the 
tax.1      Where  a  series   of  judgments    has  been  rendered 
against  a  town,  and  for  a  number  of  years  the  town  has 
taken  no  action  to  provide  for  their  payment,  a  mandamus 
will  lie  to  compel  the  levy  of  a  tax  to  pay  such  a  judgment, 
thoueh  no  formal  demand  to  do  so  has  been  made.     Such 
town  has  shown  by  its  conduct  that  it  does  not  intend  to 
pay,  and  it  would  be  a  work  of  supererogation  to  require 
a  demand.2  Where,  by  law,  on  request  of  a  contractor,  a  pub- 
lic board  was  required  to  agree  with  him  on  arbitrators  to 
pass  on  his  claims,  a  failure  by  such  board  to  act  on  the  mat- 
ter, though  the  contractor  had  attended  their  meetings  and 
requested  them  to  act,  was  considered  to  be  equivalent  to  a 
refusal  to  act.3  A  rescission  of  the  resolution,  on  which  a  dis- 
patch was  founded,  was  considered  for  the  purposes  of  a 
mandamus  to  be  equivalent  to  a  refusal  to  send  the  dis- 
patch.4    A  demand  on  a  city  to  pay  a  judgment  against  it 
was  held  to  justify  an  application  to  compel  it  to  levy  a  tax 
to  make  such  payment  upon  its  failure  to  pay,  and  that  a 
demand  to  levy  a  tax  was  unnecessary.5     Where  a  refusal 
is  dispensed  with,  it  must  clearly  appear  that  the  respond- 
ent withholds  compliance  and  distinctly  determines  not  to 
do  what  is  required,8  or  the  mandamus  will  be  refused.     A 
demand  was  made  May  21th  on  one  member  of  a  township 
committee  to  borrow  money  to  pay  a  judgment  against  the 
township.     A  mandam,us  was  applied  for  June  1st.     The 
interval  was  considered  to  be  too  brief  to  support  the  con- 
clusion that  the  committee  had  refused  to  meet  and  act.7 

1  People  v.Livingston  Co.  (Sup'rs),  5  Cairo  (City)  v.  Everett,  107  I1L 
68  N.  Y.  114.  75. 

2  United     States      v.     Brooklyn  6 King  v.  Brecknock  Canal,  3  A. 
(Town),  10  Biss.  466.  &  E.  217. 

3  State  v.  Jersey  City  (Board  Fi-  "  State  v.  Union  Township,  43  N. 
nance),  38  N.  J.  L.  259.  J.  L,  531. 

4  King  v.  East  India  Co.,  4  B.  & 
Ad.  530. 


282  APPLICATION    TO    OFFICER.  [§§  226,  227. 

It  seems  almost  unnecessary  to  add  that  when  a  demand 
is  not  necessary  a  refusal  is  also  not  necessary.1 

§  226.  A  demand  cannot  be  made  before  the  time  has 
expired  wherein  the  officer  is  allowed  to  do  the  act.— 

When  by  law  an  officer  is  allowed  till  a  certain  time  to  dis- 
charge a  certain  duty,  no  demand  can  be  made  on  him  till 
that  period  has  passed.  When  it  is  the  duty  of  a  common 
council  to  provide  in  the  annual  appropriation  bill  for  the 
payment  of  judgments  against  the  city,  the  proper  time  to 
make  a  demand  on  them  is  after  their  failure  to  do  so.2 
Where  a  statute  requires  a  company  after  the  work  is  com- 
pleted, on  requirement  of  an  interested  party,  to  perform 
those  things  which  it  has  neglected,  a  demand  thereof 
must  be  made  after  the  completion  of  the  work.3  When 
the  law,  under  which  a  debt  is  contracted  by  a  county, 
prescribes  that  the  tax  for  its  payment  shall  be  levied  and 
collected  at  the  same  time  and  manner  as  the  regular  state 
and  county  taxes,  a  demand  to  make  a  levy  of  a  tax  to  pay 
such  debt  is  premature  if  made  before  such  time.4 

§  227.  Will  a  mandamus  lie,  when  the  power  to  do  the 
act  for  that  year  closes  with  the  occurrence  of  the  de- 
fault?—  It  sometimes  happens  that  the  officer  is  allowed  to 
delay  the  performance  of  a  duty  till  a  certain  date,  and 
after  that  period  it  becomes  impossible,  owing  to  the 
nature  of  the  duty  or  the  provisions  of  law,  for  him  to 
perform  such  duty.  In  such  case  it  becomes  a  question 
whether  a  mandamus  can  issue  at  all,  because  prior  to  such 
date  there  has  been  no  default,  and  subsequent  thereto  it 
is  too  late  to  comply  with  the  law.  A  comptroller-general 
was  required  each  year,  on  or  before  the  15th  day  of  No- 
vember, to  notify  the  county  auditors  what  per  centum 
was  to  be  levied  on  property  as  a  tax  to  pay  the  interest 
on  the  state  bonds  then  due,  in  arrear,  and  to  become  due 
during  the  coming  year.     The  comptroller  gave  such  notice, 

1  Ante,  %  224.  3  q.  v.  Bristol,  etc.  R  R,  4  Ad.  & 

2  Cairo  (City)  v.  Campbell,  116  111.    E.  (N.  S.)  162. 

305.  4  State  v.  Kenuington,   10  Rich. 

(N.  S.)  299. 


§  227.]  APPLICATION    TO    OFFICER.  283 

omitting  from  his  calculation  certain  state  bonds.  A  man- 
damus was  applied  for,  after  November  15th,  to  compel  him 
to  give  a  notice  which  would  include  such  bonds.  It  was 
objected  that  the  application  was  premature  relative  to  the 
next  year,  and  too  late  relative  to  the  year  just  passed,  in- 
asmuch as  the  county  auditors  and  the  other  county  audi- 
tors had  acted  on  such  notices,  and  the  law  did  not  authorize 
any  subsequent  notice.  The  court  considered  such  conclu- 
sion to  be  a  parody  on  justice.  It  considered  that,  giving 
the  statute  and  the  rules  of  law  a  reasonable  construction, 
a  refusal  by  the  respondent  to  perform  this  duty,  even  be- 
fore November  15th,  must  be  considered  as  equivalent  to  a 
total  want  of  performance  for  all  remedial  purposes,  inas- 
much as  the  15th  day  of  November  was  fixed,  not  as  the  day 
proper  for  the  doing  of  the  act,  but  as  a  period  to  mark  the 
default  of  the  respondent  should  it  remain  unperformed, 
and  therefore,  as  he  might  perform  on  a  previous  day,  re- 
fusal on  such  day  to  perform  altogether  is  evidence  of  a 
default  as  affecting  the  right  of  a  party  to  a  civil  remedy. 
The  court  stated  that,  if  the  respondent  in  his  return  had 
denied  the  fact  of  refusal,  or  had  alleged  his  willingness  to 
perform,  such  allegation,  if  undisputed,  would  have  ended 
the  matter.1  A  city  levied  only  a  part  of  the  tax  required 
in  order  to  pay  certain  obligations,  and,  when  a  mandamus 
was  applied  for  to  compel  the  levying  of  the  necessary  tax, 
it  was  objected  that  under  the  law  the  period  wherein  a 
tax  could  be  levied  had  passed  for  that  year.  The  court 
issued  the  alternative  writ,  stating  that,  in  case  a  peremp- 
tory  writ  was  eventually  ordered,  it  would  extend  the  time 
for  making  a  return  thereto,  so  as  to  cover  the  period 
wherein  under  the  law  the  appropriation  and  the  raising  of 
the  tax  could  be  obtained.2  The  fact  that  a  city  had  re- 
fused for  one  year  to  levy  a  tax  to  pay  the  interest  on  cer- 
tain of  its  bonds,  and  the  assertion  in  its  return  that  it  did 
not  intend  to  levy  the  tax,  was  held  to  establish  such  a  case 

1  Morton  v.  Compt.  Gen.,  4  Rich.        2  State  v.  Jersey  City  (Bd.  Fin.) 
(N.  S.)  430.  (N.  J.,  Nov.  6,  1890),  20  Atl.  Rep.  755. 


284  APPLICATION    TO    OFFICER.  [§  227. 

of  intended  and  certain  default  as  justified  the  issuance  of 
a  writ  of  mandamus  to  compel  the  levy  of  such  tax  in  ad- 
vance of  the  time  when  the  duty  should  in  the  current 
year  be  performed.1  So  where  a  municipal  council  passed 
an  ordinance,  that  after  a  specified  date  no  tolls  should  be 
collected  on  a  certain  ferry,  which  was  contrary  to  the  pro- 
visions of  the  law  under  which  the  ferry  was  purchased,  a 
mandamus  was  issued  before  the  specified  date,  compelling 
the  city  to  continue  to  collect  tolls.2  The  court  cites  sev- 
eral English  decisions,  wherein  the  writ  was  issued  prior  to 
actual  default.3 

i  State  v.  New  Orleans  (City),  34  E.  &  B.  228 ;  Q.  v.  Great  Western  R. 

La.  An.  477.  R,  1  E.  &  B.  253.     These  decisions 

2  Attorney -General  v.  Boston,  123  are  reversed  upon  appeal   but  on 

Mass.  460.  another  point     The  proposition  is 

3Q.  v.  York,  etc.  R  R.,  1  E.  &  B.  also  inferentially  sustained  in  Q.  v. 

178;  Q.  v.  Lancashire,  etc.  R.  R.,  1  Eastern,  etc.  R.  R.,  10  A.  &  E.  531. 


CHAPTER  18. 

PARTIES  TO  MANDAMUS  PROCEEDINGS. 

§  228.     Parties  in  interest  must  be  the  relators  in  mandamus  proceedings 
to  protect  private  rights. 

229.  Can  a  private  party  be  the  relator  to  enforce  a  public  right? 

230.  Subject  continued. 

231.  Public  officers,  but  not  their  agents,  can  apply  for  this  writ  as  re- 

lators even  against  their  co-officers. 

232.  Who  may  be  joined  as  relators. 

233.  Does  the  writ  abate  by  the  death  of  the  relator  or  the  expiration 

of  his  term  of  office? 

234.  The  writ  must  issue  against  him  whose  duty  it  is  to  do  the  act 

desired. 
234a.  All  persons  charged  with  the  performance  of  the  duty  must  be 
joined  as  respondents,  but  none  others. 

235.  All  persons  concerned  in  the  separate  but  co-operative  steps  in 

the  attainment  of  the  result  sought  may  be  joined  as  respond- 
ents in  one  mandamus. 

236.  Contrary  rulings  on  the  last  proposition. 

237.  How  the  mandamus  should  be  directed  when  a  corporation  is 

the  respondent. 

238.  Does  the  writ  abate  upon  the  resignation,  or  expiration  of  the 

term  of  office,  of  the  respondent? 

239.  When  the  resignation  alone  does  not  vacate  the  office,  such  res- 

ignation may  be  disregarded  till  the  office  is  legally  vacated. 

240.  Where  a  corporation  or  a  select  body  is  the  respondent,  no  change 

in  its  membership  will  affect  the  proceedings. 

241.  Mandamus  not  lie  to  one  having  no  duty  in  the  premises  or  who 

has  gone  out  of  office. 

242.  Can  third  parties  be  subsequently  brought  in  as  relators  or  re- 

spondents? 
242a.  Subject  continued. 

243.  Third  persons  interested  should  be  allowed  to  intervene  or  should 

be  made  parties. 

244.  Third  parties  not  allowed  to  intervene  to  litigate  matters  not  in- 

volved in  the  mandamus  proceedings. 

§  228.  Parties  in  interest  mnstbe  the  relators  in  man- 
damns  proceedings  to  protect  private  rights. —  When  n 
mandamus  is  applied  for  to  enforce   a  private  right  the 


286  PARTIES   TO   MANDAMUS    PROCEEDINGS.  [§  228. 

party  interested  must  be  the  relator,1  or,  where  it  is  ad- 
judged that  under  their  statutes  the  writ  no  longer  runs  in 
the  name  of  the  state  to  protect  private  interests,  contrary 
to  the  long-established  usage,2  such  party  must  be  the 
plaintiff.3  To  maintain  his  mandamus  in  such  case  the  re- 
lator or  plaintiff  must  show  some  personal  or  special  inter- 
est in  the  matter,4  and  if  the  petition  should  fail  to  show 
such  interest,  it  should  be  denied.5  The  proper  party  to 
apply  for  a  mandamus  to  compel  an  officer  to  pay  a  war- 
rant drawn  on  him  is  the  holder  of  it,  and  not  the  party 
who  drew  it.6  A  county  trustee  is  the  proper  relator  in  a 
mandamus  to  compel  the  state  comptroller  to  divide  the 
school  funds  and  to  pay  them  to  the  county  trustees,  and  a 
petition  filed  by  a  county  trustee  to  the  use  of  a  school- 
teacher is  not  maintainable.7  When  the  board  of  supervis- 
ors of  a  county,  acting  as  a  board  of  equalization,  reduce 
the  assessed  value  of  realty  in  a  town,  and  the  county  au- 
ditor refuses  to  make  the  alteration,  tax-payers  who  have 
not  paid  the  tax  may  by  mandamus  compel  the  county  au- 
ditor to  make  the  alteration.8  A  father,  however,  since  the 
duty  devolves  on  him  of  sending  his  children  to  school,  may 
be  the  relator  in  mandamus  proceedings  to  assert  their  rights 
in  the  public  schools;  as  to  obtain  admission  for  them  to 
those  schools,9  or  to  be  allowed  to  use  certain  books  as  text- 
books in  those  schools.10  All  proceedings,  however,  by  county 

i  State  v.   Weld,  39  Minn.   426;  State  v.   Kearney  (City),   25  Neb. 

Ottawa  (City)  v.  People,  48  III.  233;  262;  Board  Liquid,  v.  McComb,  92 

Pike  Co.  (Com'rs)  v.  People,  11  111.  U.  S.  531 ;    State  v.  Crete  (Mayor) 

202.  (Neb.,  July  2,  1891),  49  N.  W.  Rep. 

2  Chance  v.  Temple,  1  Iowa,  179 ;  272. 

Morris  v.  Womble,  30  La.  An.  1312.  &  State  v.   Davis    Co.   (Judge),   2 

» State  v.  Jefferson  Co.  (Com'rs),  1 1  Iowa,  280. 

Kans.  66 ;  State  v.  Marston,  6  Kans.  6  State  v.  Haben,  22  Wis.  660. 

524 ;  People  v.  Pacheco,  29  Cal.  210 ;  ?  Yost  v.  Gaines,  78  Tenn.  576. 

Myers  v.  State,  61  Miss.  138;  Smith  8  Ridley  v.  Doughty,  77  Iowa,  226. 

v.  Lawrence  (S.  Dale,  June  19, 1891),  »  People  v.  Detroit  (Bd.  Educ),  18 

49  N.  W.  Rep.  7 ;  Stoddard  v.  Ben-  Mich.  400. 

ton,  6  Colo.  508.  10  State  v.  Columbus  (Bd.  Educ), 

4  Wise    v.    Bigger    79  Va.   269 ;  35  Ohio  St.  368. 


§  220.]  PARTIES    TO    MANDAMUS    PROCEEDINGS.  2S7 

commissioners  and  the  voters,  in  taking  steps  to  raise  money 
to  take  stock  in  an  incorporated  company,  are  between 
them,  and  the  company  has  no  control  over  the  matter  till 
the  stock  is  taken.  Prior  thereto  a  petitioner  or  tax-payer 
can  have  a  mandamus  to  compel  the  payment  of  the  money, 
but  the  company  cannot.1 

§  229.  Can  a  private  party  be  the  relator  to  enforce  a 
public  right?  —  As  to  whether  a  private  party  may  be  a 
relator,  when  the  duty  whose  performance  is  sought  is  of  a 
public  nature,  is  a  question  which  has  called  forth  many 
conflicting-  decisions.  Some  courts  have  decided  that  in 
such  cases  a  private  party  cannot  be  the  relator,  unless  he 
has  some  private  or  particular  interest  to  be  subserved,  or 
some  particular  right  to  be  pursued  or  protected,  independ- 
ent of  that  which  he  holds  with  the  public  at  large.2  In  the 
absence  of  such  special  interest,  they  hold  that  the  public 
officers  must  apply  for  the  writ,3  who  of  course  can  only 
apply  to  protect  some  public  right  or  to  secure  some  public 
interest.4  It  has  been  held,  however,  that  the  rule  refusing 
the  privilege  to  private  parties  of  obtaining  a  mandamus  to 
enforce  public  duties  is  one  of  discretion  and  not  of  law, 
and  the  court  will  ignore  it  when  the  attorney-general  re- 
fuses to  appear  to  complain  of  alleged  omission  of  duty  by 
public  officers.5   Parties  who  owned  houses  on  certain  streets 

1  Crawford  Co.  (Com'rs)  v.  Louis-    Weeks  v.  Smith,  81  Me.  538;  State 
ville,  etc.  Railroad,  39  Ind.  192.  v.  Hollinshead,  47  N.  J.  L.  439 ;  Ter- 

2  Sanger  v.  Kennebec  Co.  (Com'rs).     ritory  v.  Cole,  3  Dak.  301. 

25  Me.  291 ;  Lyon  v.  Rice,  41  Conn.  3  Bobbett  v.  State,  10  Kan.  9 ;  Ad- 

245  ;  Atwood  v.  Partree,  56  Conn,  kins  v.  Doolen,  23  Kan.  659 ;  Sanger 

80 ;  Peck  v.  Booth,  42  Conn.  271 ;  v.  Kennebec  Co.  (Com'rs),  25  Me. 

Linden  v.  Alameda  Co.  (Sup'rs),  45  291 ;  Territory  v.  Cole,  3  Dak.  301 ; 

Cal.  6 ;  Adkins  v.  Doolen,  23  Kan.  Mitchell  v.  Boardman,  79  Me.  469 ; 

659;  Bobbett  v.  State,  10  Kan.  9;  Weeks  v.  Smith,  81  Me.  538. 

Moon  v.  Cort,  43  Iowa,  503 ;  Smith  4  People  v.  Rome,  etc.  R.  R,  103 

v.  Saginaw  (Mayor),  81  Mich.  123;  N.  Y.  95;  Attorney-General  v.  Al- 

People  v.  Inspectors  State  Prison,  4  bion,  etc.  Inst.,  52  Wis.  469. 

Mich.  187 ;  Heffn'er  v.  Com.,  28  Pa,  5  People  v.  State  Auditors  (Board), 

St.  108 ;  Com.  v.  Mitchell.  82  Pa.  St.  42  Mich.  422 ;  People  v.  University 

343 ;  State  v.  Grubb,  85  Ind.  213 ;  (Regents),  4  Mich.  98. 
Mitchell  v.  Boardman,  79  Me.  469 ; 


288  PARTIES    TO    MANDAMUS    PROCEEDINGS  [§  230. 

have  been  allowed  writs  of  mandamus  to  compel  cities  and 
towns  to  open  and  repair  them,  as  being  specially  and  di- 
rectly interested  in  such  action.1  An  elector  was  refused  a 
mandamus  to  compel  the  county  supervisors  to  order  an 
election  for  the  removal  of  the  county  seat.2  A  private 
person  was  not  allowed  to  use  the  writ  to  compel  public 
officers  to  remove  fences  and  to  open  an  old  highway.-'  A 
private  party  was  refused  a  mandamus  to  compel  the  open- 
ing of  an  alley,  though  it  would  have  passed  through  two 
of  his  lots  and  would  have  enhanced  the  value  of  his  prop- 
erty. It  was  considered  that  the  only  right  he  would  have 
in  the  alley  was  a  right  of  passage,  which  he  would  hold  in 
common  with  the  public.4  A  bidder  for  municipal  work 
was  denied  a  mandamus  to  compel  the  officers  to  award 
him  the  contract,  though  he  was  the  lowest  bidder.  It  was 
stated  that  the  injury  sustained  by  the  rejection  of  the 
lowest  bid  fell  on  the  public,  and  not  on  the  relator,  whose 
profits  were  speculative,  of  which  the  law  would  take  no 
account.5  Where  a  mandamus  was  brought,  at  the  relation 
of  a  private  party,  to  compel  the  county  board  of  super- 
visors to  build  a  bridge,  the  cow:t  sustained  it,  because  the 
attorney-general  signed  the  relator's  brief  and  impliedly 
authorized  the  use  of  the  name  of  the  state." 

§  230.  Subject  continued.-  The  great  weight  of  Ameri- 
can authority,  however,  is  to  the  elfect  that,  where  the  re- 
lief sought  is  a  public  matter,  or  a  matter  of  public  right, 
the  people  at  large  are  the  real  party,  and  any  citizen  is 
entitled  to  a  writ  of  mandamus  to  enforce  the  performance 
of  such  public  duty.7     Among  such  duties  have   been  in- 

1  Haminar  v.  Covington  (City),  3  36  Cal.  595;  Stoddard  v.  Benton,  6 

Mete.      (Ky.)     404;      Catlettsburg  Colo.  508. 
(Trustees)  v.  Kinner,  13  Bush,  334.         7Chumasero  v.  Potts.  2  Mont.  242; 

-  Linden  v.  Alameda  Co.  (Sup'rs),  State  v.  Gracey,  11  Nev.  223;  State 

45  Cal.  6.  v.  Francis,  95  Mo.  44 :  State  v.  Van 

3  Atwood  v.  Partree,  56  Conn.  80.  Duyn,  24  Neb.  586;  State  v.  Brown. 

4  I  leffner  v.  Com.,  28  Pa.  St.  108.  38  Ohio  St  344 ;  State  v.  Ware,  13 
sCom.  v.  Mitchell,  82  Pa.  St  343.  Oreg.  380;  Sansom  v.  Mercer,  68 
6  People  v.  San  Francisco  (Sup'rs),  Tex.  488 ;  Wise  v.  Bigger,  79  Va. 


$  230.]  PARTIES   TO   MANDAMUS    PROCEEDINGS.  289 

eluded :  the  calling  of  an  election  to  fill  public  or  municipal 
offices ; '  the  restoration  of  a  highway  to  its  former  condi- 
tion by  a  railroad  company  as  required  by  its  charter;2  the 
running  of  its  trains  by  a  railroad  company  across  a  river 
to  its  legal  terminus;3  the  opening4  and  working5  of  a 
public  road ;  the  direction  by  a  city  council  to  the  city  so- 
licitor to  proceed  to  sell  according  to  law  the  lands  of  de- 
linquents to  enforce  the  payment  of  taxes ; 6  the  assessment 
by  the  assessor  of  property  subject  to  assessment;7  the 
selection  of  two  newspapers  of  opposite  politics  wherein  to 
publish  the  session  acts ; 8  the  maintenance  of  a  certain 
bridge  as  a  public  highway ;  °  the  maintaining,  opening  and 
closing  of  bridges  over  a  certain  river ; 10  the  widening  of  a 
street  in  a  city ;  u  the  issuance  by  a  county  treasurer  of  his 
warrant  for  the  collection  of  a  tax ; 12  the  making  out  of  the 
list  of  the  stock  of  a  railroad  company  for  taxation  by  the 
auditor  of  the  county  on  the  failure  of  the  company  to  do 
so;13  and  the  issuance  by  a  county  auditor  of  his  duplicate 
for  the  tax  on  the  real  estate  in  the  county,  without  adding 

269 ;    People  v.   Board  Educ,  127  *  McConihe  v.  State,  17  Fla,  238 ; 

I1L613;  Ottawa  (City)  v.  People,  48  State  v.  Brown,  38  Ohio  St  344; 

111.  233 ;   State  v.  Weld,  39  Minn.  State  v.  Ware,  13  Oreg.  381 ;  San- 

426 ;    Attorney-General  v.  Boston,  som  v.  Mercer,  68  Tex.  488. 

123  Mass.   460 ;   State  v.   Marshall  -  State  v.  Hannibal,  etc.  R  R,  86 

Co.  (Judge),  7  Iowa,  186 ;  State  v.  Mo.  13. 

Jefferson  Co.  (Canv'rs),  17  Fla.  707 ;  »  Union  Pacific  R  R  v.  Hall,  91 

McConihe    v.   State,   17    Fla.   238;  U.  S.  343. 

Union  Pacific  R  R  v.  Hall,  91  U.  S.  *  Hall  v.  People,  57  111.  307. 

343 ;    State  v.   Kearney  (City),   25  » People  v.  Collins,  19  Wend  56. 

Neb.    202  ;    People    v.    Collins,   19  b  State  v.  Camden,  39  N.  J.  L.  620. 

Wend.    56  ;    Ford    v.    Cartersville  ~>  Hyatt  v.  Allen,  54  Cal.  353. 

(Mayor),  84  Ga.  213 ;  Moses  v.  Kear-  8  People  v.  Sullivan  Co.  (Sup'rs), 

ney,  31  Ark.  261 ;  Hancock  v.  Perry  56  N.  Y.  249. 

(Dist  Town),  78  Iowa,  550;  Clarke  9  Pumphrey  v.  Baltimore  (Mayor), 

Co.  (Com'rs)  v.  State,  61   Ind.  75 ;  47  Md.  145. 

State  v.  Camden,  39  N.  J.  L.  620 ;  Jttawa  (City)  v.  People,  48  HI. 

Hyatt  v.  Allen,  54  CaL  353;  People  883. 

v.  Sullivan  Co.  (Sup*rs),  56  X.  Y.  249 ;  u  People  v.  Brooklyn  (Com.  Coun.), 

Pumphrey   v.   Baltimore    (Mayor),  22  Barb.  404. 

47  Md.  145 ;  People  v.  Bloomington  u  People  v.  Halsey,  37  N.  Y.  344 

(Mayor),  63  I1L  207.  I*  State  v-  Hamilton,  5  Ind.  310. 
19 


290  PARTIES    TO   MANDAMUS   PROCEEDINGS.  [§  231. 

to  the  valuation  an  additional  per  cent,  which  was  added 
by  a  state  board  of  equalization,  which  was  not  duly  consti- 
tuted.1 The  right  of  a  private  party  to  be  the  relator  in  a 
mandamus  proceeding  to  compel  the  performance  of  a  pub- 
lic duty  does  not  exist,  when  such  duty  is  due  to  the  gov- 
ernment as  such.  In  such  cases  a  private  party  cannot 
interfere,  but  the  government  through  its  officers  alone  can 
apply  for  the  writ.2  A  creditor  of  a  state  was  refused  a 
writ  of  mandamus,  when  its  effect  would  have  been  to  ex- 
ercise a  supervisory  control  over  the  state  treasurer  and 
the  auditor  of  state  in  the  conduct  of  their  offices.  Such 
officers  are  liable  to  the  state  and  not  to  its  creditors,  who 
cannot  supervise  the  settlements  made  by  those  officers 
with  the  various  tax  collectors.3  Of  course,  when  the  state 
as  such  is  directly  interested  in  the  matter,  it  should  apply 
through  its  legal  officer,  and  a  private  party  will  not  be 
allowed  to  enforce  the  rights  of  the  state  by  this  writ.4 

§  231.  Public  officers,  but  uot  their  agents,  cau  apply 
for  this  writ  as  relators,  even  against  their  co-officers. 
"When  the  law  imposes  a  power  or  duty  upon  a  board  of 
officers,  and  to  do  it  they  require  the  assistance  of  a  man- 
damus, they  ma}r  apply  for  it.5  Agents  or  servants,  however, 
cannot  assert  the  rights  of  their  principals  and  thereby  ob- 
tain a  mandamus  in  their  own  names.  A  committee  of  a 
town  appointed  to  inspect  the  books  of  the  overseers  of  the 
town  cannot  bring  a  writ  of  mandamus  in  their  own  names 
to  compel  such  overseers  to  deliver  to  them  such  books  for 
iuspection.  The  committee  are  not  public  officers,  entitled 
by  their  office  to  the  custody  of  those  books,  nor  charged 
with  any  public  duty  concerning  them.6  The  rule,  that  a 
party  cannot  sue  at  law  a  partnership,  board  of  trustees,  or 

1  Hamilton  v.  State,  3  Incl  452.  3  state  v.  Dubuclet,  28  La.  An.  85. 

2  Union  Pacific  R.  R.  v.  Hall,  91        4  State  v.  Carey  (N.  Dak.,  June  16, 
U.  S.  343;  State  v.  Weld,  39  Minn.     1891),  49  N.  W.  Rep.  164. 

426 ;    Attorney-General  v,   Boston,        5  Holland  v.  State,  23  Fla.  123. 
123  Mass.  460;  Chicago,  etc.  R  R.        6  Bates  v.  Overseers  of  Poor,  14 
v.  Suffern,  129  111.  274.  Gray,  16a 


§  232.]  PARTIES    TO   MANDAMUS   PROCEEDINGS.  201 

other  board,  of  which  he  is  a  member,  does  not  apply  to 
mandamus  proceedings.1 

§  232.  Who  may  be  joined  as  relators. — All  the  parties 
interested  may  be  joined  as  relators  in  a  mandamus  pro- 
ceeding,2 but  it  is  not  necessary  to  join  all  of  them.3  If, 
however,  other  interested  parties  may  be  affected  by  the 
relief  granted  to  the  relator,  the  writ  should  be  in  behalf 
of  all  such  interested  parties,  or  should  show  that  separate 
action  can  be  taken  on  the  relator's  claim  without  injuring 
the  other  interested  parties.4  In  order,  however,  that  par- 
ties may  be  joined  as  relators,  they  must  have  a  right 
common  to  all  of  them,  must  have  a  joint  benefit  in  the 
performance  of  the  act  or  duty  required  of  the  respondent, 
and  must  be  joint  sufferers,  because  of  the  non-doing.5  A 
mandamus  must  not  include  more  than  one  case,  whether 
of  the  same  or  many  individuals.  Two  or  more  distinct 
rights  cannot  be  joined  in  one  proceeding,6  at  the  instance 
of  two  persons,7  though  they  succeeded  each  other  in  the 
same  office.8  Where  a  court  of  equity  had  decreed  one- 
fourth  of  a  certain  sum  of  rnoney  to  each  of  four  petition- 
ers, a  mandamios,  brought  by  two  of  them  against  a  state 
officer  to  compel  the  payment  of  their  proportions,  was 
denied,  because  the  interests  of  the  relators  were  separate.9 
Where  several  persons  have  been  turned  out  of  their  offices, 
though  their  offices  are  the  same,  as  common  councilmen 
of  a  municipality,  they  cannot  sue  out  a*  common  writ  of 
mandamus  to  compel  their  restoration,  since  the  wrong 
done  to  one  is  no  wrong  to  the  others,  nor  was  the  election 
of  one  the  election  of  the  others.  Their  interests  are  sev- 
eral.10   If  an  alternative  writ  of  mandamus  is  issued  in  such 

1  Cooper  v.  Nelson,  38  Iowa,  440.  ^Haskins  v.  Scott  Co.  (Sup'rs),  51 
See  §  235.  Miss.  406. 

2  Newman,  Ex  parte,  81  TJ.  S.  152 ;  <*  Haskins  v.  Scott  Co.  (Sup'rs),  51 
Hammar  v.  Covington  (City),  3  Miss.  406 ;  King  v.  Kingston  (Mayor), 
Mete.  (Ky.)  494.  8  Mod.  209. 

3  Maddox    v.    Graham,   2    Mete.  ~>  Stephen's  Nisi  Prius,  2323. 
(Ky.)  56.  8  Scott,  Ex  parte,  8  Dowl.  328. 

*  Lee  Co.  v.  State,  36  Ark.  276.  9  Heckart  v.  Roberts,  9  Md.  41. 

lOAndover,  Case  of,  2  Salk.  433; 


292  PARTIES   TO   MANDAMUS    PROCEEDINGS.       [§§  233,  234. 

a  case,  it  will  be  quashed  if  it  has  been  returned ;  if  it  has 
not  been  returned,  it  will  be  superseded.1  Where,  however, 
several  persons  were  similarly  situated  and  had  a  common 
interest  at  stake,  they  were  allowed  to  join  in  one  man- 
damus proceeding.  They  were  four  officers,  against  whom 
charges  were  preferred,  in  globo.  They  were  tried  at  the 
same  place  and  time,  and  without  any  severance,  and  the 
same  testimony  was  adduced  against  one  and  all,  and  they 
were  removed  from  office  by  a  single  decree.2 

§  233.  Does  the  writ  abate  by  the  death  of  the  relator 
or  the  expiration  of  his  term  of  office?  —  It  is  held  that, 
when  a  private  party  applies  for  a  mandamus,  the  proceed- 
ings abate  with  his  death,3  but  the  death  of  a  copartner 
among  the  relators  does  not  abate  the  writ.4  When,  how- 
ever, the  mandamus  is  prosecuted  by  a  public  officer  in  his 
official  capacity  for  tho  public  benefit,  the  law  regards  the 
office,  and  not  the  adjunct  name  of  the  individual,  and  the 
writ  will  not  abate  at  the  end  of  his  term,  but  shall  be  con- 
tinued by  his  successor.5 

§  234.  The  writ  must  issue  against  him  whose  duty  it 
is  to  do  the  act  desired. —  The  writ  of  mandamus  must  issue 
directly  against  him  whose  duty  is  it  to  do  the  thing  the 
parties  wish  done.6  The  writ  has  been  refused,  because  the 
respondents  had  not  the  power  to  do  the  act  desired :  to  a 
parish  assessor  and  tax  collector  to  levy  a  tax;7  to  a  town 
council  to  restore  certain  moneys  in  the  hands  of  the  town 
treasurer  to  the  school  account,  which  by  their  order  he 
had  deducted  from  that  account ; 8  and  to  a  county  to  com- 

12  Mod.   332;   King  v.   Chester,  5  Head,   650;    Hardee    v.   Gibbs,   50 

Mod.  10 ;    S.  C.  as  Anon.,  2  Salk.  Miss.  802. 

436.  6  Rowland,  Ex  parte,   104  U.   S. 

i  King    v.   Kingston    (Mayor),   8  604 ;  Fry  v.  Reynolds,  33  Ark.  450 ; 

Mod.  209.  People  v.  Hayt,  66  N.  Y.  606 ;  Peo]  >le 

2  State  v.  Shakspeare  (La.,  Dec.  1,  v.  Crotty  (Village),  93  111.  180 ;  Far- 
1890),  8  S.  Rep.  893.  rell  v.  King,  41  Conn.  448 ;  State  v. 

3  Booze  v.  Humbird,  27  Md.  1.  Penn.  R.  R,  41  N.  J.  L.  250;  State 

4  People  v.  Essex  Co.  (Sup'rs),  70  v.  Shreveport  (City),  29  La.  An.  658. 
N.  Y.  228.  7  state  v.  Fournet,  30  La.  An.  1103. 

6 Felts    v.    Memphis    (Mayor),  2        estate  v.  Union  (Town  Council) 


§  234(7.]  PARTIES   TO   MANDAMUS    PROCEEDINGS.  293 

pel  the  return  of  a  tax  illegally  collected,  since  the  county 
treasurer  or  the  supervisors  were  the  proper  parties.1  But 
the  "writ  was  considered  to  be  properly  addressed :  to  the 
custodian  of  the  corporate  books  in  an  effort  by  a  stock- 
holder to  obtain  an  examination  thereof ; 2  but  the  direct- 
ors may  also  be  included,  when  such  custodian  is  acting 
under  their  orders  in  refusing  to  allow  such  inspection ; 3  to 
the  secretary  of  state  to  obtain  a  patent  for  United  States 
land,  which  had  been  signed,  sealed,  countersigned  and  re- 
corded in  the  record  book  of  the  land  department ; 4  and  to 
the  county  officers  to  levy  a  tax  to  pay  a  judgment  against 
a  township.5 

§  234a.  All  persons  charged  with  the  performance  of 
the  duty  must  he  joined  as  respondents,  hut  none  others. 
The  general  rule  is,  that  all  persons  charged  with  the  per- 
formance of  the  duty  sought  must  be  made  respondents,6 
even  though  some  of  them  are  willing  to  perform  their 
duty,  and  in  fact  are  asking  for  the  writ  to  compel  the  dis- 
charge of  duty  by  their  colleagues.7  When,  however,  a 
majority  of  such  persons  can  legally  perform  the  duty  de- 
sired, and  are  willing  to  do  so,  the  writ  will  not  issue 
against  any  of  them  though  one  of  them  may  refuse  to  act, 
since  in  such  case  the  writ  will  be  unnecessary.8  So  the 
writ  may  include  any  number  of  persons  as  respondents,  if 
the  duty  is  to  be  performed  by  all  or  by  one  or  other.9  If, 
however,  the  duties  of  the  respondents  are  separate,  the 
writ  will  be  refused.  A  mandamus  to  make  the  trustees 
of  two  townships  discharge  their  duties  relative  to  a  cer- 

(N.  J.,  Nov.  8,  1889),  18  Atl.  Rep.  e  Gaal  v.  Townsend,  77  Tex.  464. 

571.  "  Lyon    v.   Rice,   41    Conn.   245 ; 

1  Eyerly  v.  Jasper  County,  72  State  v.  Jones,  1  Ired.  129 ;  Knight 
Iowa,  149.  v.   Ferris,  6  Houst.   283 ;  Anon.,  2 

2  State  v.  Bergenthal,  72  Wis.  314 ;  Chit.  254 ;  Q.  v.  Pickles,  3  Ad.  & 
People  v.  Mott,  1  How.  Pr.  247.  E.  (N.  S.)  599. 

3  People  v.  Throop,  12  Wend.  183.        8  White  River  Bank,  In  re,  23  Vfc 
*  United  States  v.  Schurz,  102  U.  S.    478. 

378.  9  King  v.   Middlesex  (Archd),  3 

5  Labette  Co.  (Com'rs)  v.  United    A  &  E.  615. 
States,  112  U.  S.  217. 


294:  PAETIES   TO   MANDAMUS    PKOCEEDINGS.  [§  235. 

tain  public  road  was  refused,  because  each  township  acted 
for  itself,  and  the  duties  of  the  respective  trustees  were  en- 
tirely distinct.1  A  mandamus  was  asked  to  compel  a  town 
and  a  city,  which  had  been  carved  out  of  the  town,  to  levy 
a  tax  to  pay  a  judgment  obtained  on  town  bonds,  which 
had  been  issued  prior  to  the  existence  of  the  city.  The 
writ  was  refused  as  to  the  city,  because  the  duties  of  the 
two  boards  controlling  the  town  and  city  were  several 2 
When  a  party  has  been  improperly  joined  as  a  respondent, 
the  writ  will  be  dismissed  as  to  all  parties,  the  rule  being 
that  the  relator  must  prove  his  right  to  all  he  claims  in  the 
alternative  writ,  to  which  the  peremptory  writ  is  required 
to  conform.3  A  writ  of  mandamus  against  the  governor  of  a 
state  and  the  secretary  of  state  of  the  state  was  dismissed, 
because  the  governor  was  not  amenable  to  mandamus  pro- 
ceedings.4 

§  235.  All  persons  concerned  in  the  separate  but  co- 
operative steps  in  the  attainment  of  the  result  sought 
may  he  joined  as  respondents  in  one  mandamus. —  One 
writ  of  mandamus  may  issue  against  all  officers  concerned 
in  the  separate  but  co-operative  steps  in  the  attainment  of 
one  result  in  the  performance  of  a  general  duty.5  One  writ 
of  mandamus  was  considered  proper :  to  a  mayor  and  the 
capital  burgesses  to  elect  a  mayor  and  swear  him  into 
office,  when  it  was  the  duty  of  the  burgesses  to  elect  and 

i  State  v.  Chester,  10  N.  J.  L.  292.    State  v.  Weir  (Neb.,  Sept.  22,  1891), 

2  State  v.  Beloit  (Sup'rs),  20  Wis.    49  N.  W.  Rep.  785. 

79.  4  People  v.  Yates,  40  111.  126.    In 

3  Rex  v.  Norwich  (Mayor),  Stra.  another  case  the  writ  was  granted 
55 ;  Reg.  v.  Hereford  (Mayor),  2  Salk.  as  to  one  respondent,  while  the  fact 
70 ;  King  v.  Smith,  2  M  &  S.  583 ;  that  the  governor  was  a  co-respond- 
Buller's  Nisi  Prius,  200.  The  oppo-  ent  was  ignored.  State  v.  Nicholls, 
site  is  held  in  State  v.  Leon  (Sup'rs),  42  La.  An.  209.  In  a  later  case  in 
66  Wis.  199,  but  the  court  assigns  Illinois  (People  v.  Sec.  of  State,  58 
no  reason  for  the  decision.  The  111.  90),  the  writ  was  granted  as  to 
writ  has  been  held  good  as  to  the  the  state  auditor  and  the  state  treas- 
respondent  upon  whom  the  duty  urer,  while  it  was  refused  as  to  the 
devolved   to    do   the    act  desired  secretary  of  state. 

State  v.   Mount,  21   La.   An.  352;        *  Labette  Co.  (Com'rs)  v.  United 


§  235.]  PARTIES   TO   MANDAMUS    PROCEEDINGS.  295 

of  the  mayor  to  swear  into  office ; *  to  a  mayor  and  the  city 
council  to  take  certain  land  in  payment  of  the  assessments 
for  improvements,  and  to  pay  the  value   of  the   equity 
therein,  when  the  action  of  the  city  council  in  taking  the 
land  required  the  approval  of  the  mayor ; 2  to  the  clerk  of 
the  county  court  and  two  justices  of  the  peace,  as  canvassers 
of  the  votes,  to  count  the  votes  and  enter  the  result,  and  to 
the  clerk  to  issue  a  certificate  of  election  to  the  legislature ; 3 
to  the  lord  of  the  hundred  and  the  steward  to  hold  a  leet- 
court,  and  appoint  the  proper  officers ; 4  to  the  auditor  and 
treasurer  of  state,  the  one  to  draw  his  warrant,  and  the 
other  to  pay  it ; 5  and  to  the  lord  of  the  manor,  as  well  as 
to  the  steward  thereof,  in  a  proceeding  by  mandamus  to 
compel  the  admission  of  a  party  to  a  customary  or  copy- 
hold estate,  in  order  that  the  interests  of  the  lord  might  be 
more  effectually  protected.6     In  order  to  compel  the  elec- 
tion of  a  mayor  of  a  borough,  one  mandamus  was  issued 
against  the  lord  and  steward  of  a  leet  to  hold  a  leet-court, 
against  the  bailiff  of  the  leet  and  his  deputy  to  return  and  de- 
liver the  panel  or  list  of  the  jury  into  the  leet-court,  against 
the  steward  of  the  leet  to  swear  the  jury,  and  against  the 
twenty-four  jurors  to  allow  themselves  to  be  sworn,  and  to 
proceed  to  elect  a  mayor  of  the  borough.7    When  it  has 
not  appeared  that  such  parties  have  any  objection  to  dis- 
charging the  duties  devolving  upon  them  after  the  discharge 
of  precedent  duties  by  other  officers,  the  courts  have  not  re- 
quired that  they  be  joined  in  the  mandamus  proceedings.3 
A  township  had  passed  an  ordinance,  in  accordance  with  the 
law,  that  if  a  railroad  was  completed  to  a  certain  point  by 

States,  112  U.  S.  217 ;  State  v.  Bai-  4  King     v.    Milverton    (Lord    of 

ley,  7  Iowa,  390.  Hundred),  3  Ad.  &  E.  284. 

i  King    v.   Abingdon   (Mayor),   1  8  State  v.  Smith,  43  I1L  219 ;  State 

L.  Raym.   559 ;    King    v.  Tregony  v.  Bordelon,  6  La.  An.  68 ;  People 

(Mayor),   8    Mod.    Ill,   127;    R.   v.  v.  Secretary  of  State,  58  111.  90. 

Bankes,  3  Burr.  1452.  6  Q.  v.  Powell,  1  Q.  B.  352. 

2Farnsworth  v.  Boston  (City),  121  7Rex  v.  Bankes,  3  Burr.  1452. 

Mass.  173.  8  state  v.  Richter,  37  Wis.  275. 

3  People  v.  Hilliard,  29  111.  41-3. 


296  PARTIES    TO    MANDAMUS   PROCEEDINGS.  [§  236. 

a  designated  time,  and  by  their  vote  the  inhabitants  of  the 
township  should  approve  thereof,  then  the  town  reeve 
should  make  out  and  deliver  to  the  railroad  company  de- 
bentures of  the  township  to  a  certain  amount,  which  should 
have  the  seal  of  the  township  thereto,  and  should  be  signed 
by  the  reeve  and  the  town  treasurer.  Upon  an  application 
for  a  mandamus  to  compel  the  reeve  to  deliver  the  debent- 
ures properly  signed  and  sealed  to  the  railroad  company,  it 
appeared  that  the  railroad  had  been  completed  to  the  point 
designated  within  the  limited  time,  and  that  the  vote  of 
the  inhabitants  had  been  in  favor  of  the  subscription.  The 
court  made  the  rule  to  show  cause  absolute,  holding  that 
the  township  was  not  a  necessary  party,  since  it  had  noth- 
ing further  to  do  in  the  matter,  and  that  the  town  treas- 
urer was  not  a  necessary  party,  as  it  did  not  appear  that  he 
was  not  willing  to  sign  the  debentures  so  soon  as  they  were 
presented  to  him.1 

§  236.  Contrary  rulings  on  the  last  proposition. —  There 
are  a  few  decisions  which  have  denied  the  right  to  make 
such  joinder  of  respondents.  A  judgment  that  mandamus 
issue  against  a  city  comptroller  to  draw  his  warrant  on  the 
city  treasurer  for  the  amount  due  on  bills  which  he  had  ap- 
proved, and  against  the  latter  to  pay  such  warrants  when 
drawm,  was  on  appeal  affirmed  as  to  the  comptroller,  but 
dismissed  as  to  the  city  treasurer,  because  he  was  not  in 
default,  since  no  warrants  had  as  yet  been  drawn  on  him.2 
"Where  a  writ  of  mandamus  was  requested  to  compel  the 
board  of  canvassers,  of  which  the  secretary  of  state  was  a 
member,  to  re-assemble  and  count  the  votes  properly,  and 
to  the  secretarv  of  state  to  record  their  findings  and  to  give 
the  relator  the  proper  certificate  of  his  election,  the  court 
considered  that  the  application  for  a  mandamus  against  the 
secretary  of  state  could  not  be  united  with  the  application 
for  the  writ  against  the  board  of  canvassers.  Since  the 
board  of  canvassers  had  not  made  a  return  of  the  election 

1  Canada  C.  R  R  et  al.,  In  re,  35  2  State  v.  Mount,  21  La.  An.  352. 
Up.  Can.  Q.  B.  390. 


§  237.]  PARTIES   TO   MANDAMUS   PROCEEDINGS.  297 

of  the  relator,  the  secretary  had  not  been  derelict  in  the 
duty  desired  from  him.  The  court  maintained  that  it  would 
be  an  abuse  of  justice  to  convict  one  of  non-feasance  or  mis- 
demeanor in  neglecting  his  official  duty  in  failing  to  certify 
to  a  fact,  when  the  fact  does  not  exist,  or  when  he  has  not 
refused  to  do  what  may  be  required,  and  to  mulct  him  in 
costs  when  he  is  not  in  default.1  This  decision  is  contrary 
to  the  general  current  of  decisions,  and  does  not  seem  to  be 
in  accord  with  the  principles  of  justice.  Occasions  may 
arise  where,  under  this  ruling,  a  party  would  be  compelled 
to  resort  to  successive  writs  of  mandamus  before  he  could 
finally  obtain  his  rights ;  and  in  some  cases  he  will  be  prac- 
tically deprived  of  his  rights,  either  by  the  termination  of 
his  term  of  office  or  by  a  change  of  external  circumstances. 
On  the  other  hand,  if  such  joinder  be  permitted  in  manda- 
mus proceedings,  the  parties  so  joined  as  respondents  may 
in  their  returns  disclaim  any  intention  to  obstruct  proceed- 
ings or  to  refuse  to  perform  the  duty  desired  when  the 
occasion  therefor  may  arise,  and  the  courts  can  award  the 
costs  according  to  their  discretion. 

§  237.  How  the  mandamus  should  be  directed  when  a 
corporation  is  the  respondent. —  If  the  act  sought  is  a 
duty  incumbent  on  a  corporation,  the  writ  of  mandamus 
should  be  directed  to  the  corporation  itself ; 2  or  to  the  select 
body  of  officers  within  the  corporation,  whose  province  or 
duty  it  is  to  perform  the  particular  act,  or  to  put  the  nec- 
essary machinery  in  motion  to  secure  its  performance ; 3  or 

i  State  v.  Gibbs,  13  Fla.  55.  (Com'rs)  v.  United  States,  112  U.  S. 

2  City  v.  Sansum,  87 I1L  182 ;  King  217 ;  King  v.  Smith,  2  M.  &  S.  583 ; 
v.  Smith,  2  M.  &  S.  583 ;  King  v.  Fisher  v.  Charleston  (City),  17  W. 
Taylor,  3  Salk.  231;  Fisher  v.  Va.  595;  Buller's  Nisi  Prius,  200; 
Charleston  (City),  17  W.  Va.  595 ;  Louisville  (City)  v.  Kean,  18  B.  Mon. 
State  v.  Chicago,  etc.  R.  R,  79  Wis.  9 ;  Eufaula  (City  Council)  v.  Hick- 
259 ;  48  N.  W.  Rep.  243.  man,  57  Ala.   338 ;   Com.   v.  Pitts- 

3  State  v.  Penn.  R.  R,  41  N.  J.  L.  burgh  (Select  Council).  34  Pa.  St 
250;  Rex  v.  Abingdon  (Mayor),  2  496;  People  v.  Throop,  12  Wend. 
Salk.  700 ;  1  Ld.  Raym.  559 ;  Rex  v.  183 ;  People  v.  New  York  (Com. 
Norwich  (Mayor),  Stra.  •">.">;  Mayor  Coun.), 3  Keyes, 81 ;  People  v. Bloom- 
v.  Lord,  9  Wall  409 ;  Labette  Co.  ington  (Mayor),  63  111.  207. 


29S  PARTIES    TO   MANDAMUS   PROCEEDINGS.  [§   237. 

to  the  corporation  and  the  select  body  jointly.1  When, 
however,  the  writ  of  mandamus  is  addressed  to  a  select 
body  within  a  corporation,  a  board  or  tribunal  composed 
of  several  persons,  the  question  remains,  whether  the  writ 
should  be  addressed  to  such  body  or  board,  as  such,  or  to 
all  the  members  thereof  individually.  Some  courts  con- 
sider it  proper  to  address  the  writ  to  the  body  or  tribunal 
who  are  to  perform  the  act,  omitting  the  names  of  the 
members  thereof; 2  other  courts  have  thought  it  proper  to 
address  the  writ  to  the  individuals  composing  such  board 
or  tribunal,  with  the  addition  of  their  titles  or  offices ; 3 
again  either  mode  has  been  considered  to  be  admissible.4 
Where  a  board  of  supervisors  of  a  county  were  required  to 
reconvene  to  declare  a  certain  resolution  to  have  been 
adopted,  when  by  an  erroneous  interpretation  it  had  been 
declared  to  have  been  rejected,  and  to  so  record  it,  it  was 
considered  that  the  writ  might  run  alone  to  the  chairman 
and  clerk  of  the  board  to  reconvene  the  board,  to  declare 
the  resolution  to  be  carried  and  to  so  record  the  proceed- 
ings.5 It  would  seem  from  these  decisions  that  it  is  imma- 
terial whether  in  a  mandamus  proceeding  to  compel  action 
by  a  municipality,  a  board,  or  a  tribunal  composed  of  sev- 
eral members,  the  respondents  are  the  officers  charged  with 
the  duty,  or  the  select  body  composed  of  such  officers,  or 
the  municipal  body,  board  or  tribunal.     Whore  in  a  man- 

1  State  v.  Milwaukee  (City),  25  Primrose,  23  Md.  482 ;  Eufaula 
"Wis.  122;  Wren  v.  Indianapolis  (City  Coun.)  v.  Hickman,  57  Ala. 
(City),  96  Ind.  206 ;  Rex  v.  Norwich  338 ;  Com.  v.  Pittsburgh  (Sel.  Coun.), 
(Mayor),  Stra  55 ;  Regina  v.  Here-  34  Pa.  St.  496.  In  such  cases  the 
ford  (Mayor),  2  Salk.  701 ;  King  v.  writ  will  be  bad.  if  it  extends  be- 
Smith,  2  M.  &  S.  583 ;  Buller's  Nisi  yond  the  persons  required  by  the 
Prius,  200.  charter  to  concur  in  the  thing  cora- 

2  People  v.  Champion,  16  John.  61 ;  manded  to  be  done.  King  v.  Smith, 
Pees  v.  Leeds  (Mayor),  Stra.  640 ;  2  M.  &  S.  583. 

State  v.  Milwaukee  (City),  25  Wis.  4  St.  Louis  Co.  Court  v.  Sparks,  10 

122 ;  Wren  v.  Indianapolis  (City),  Mo.  117 ;  Louisville  (City)  v.  Kean, 

96  Ind.  206.  i8  B.  Mon.  9. 

3  Hollister  v.  Lucas  Co.  Ct  *  People  v.  Brinkerhoff,  68  N.  Y. 
(Judges),  8  Ohio  St  201 ;  Mottu  v.  259. 


§  238.]  PARTIES    TO   MANDAMUS    PROCEEDINGS.  299 

damns  proceeding  against  a  corporation  the  members 
thereof  were  made  the  respondents,  and  not  the  corpora- 
tion itself,  the  court  considered  any  objection  to  such  ac- 
tion to  be  merely  technical,  and  to  be  waived  if  not  taken 
in  limine}  In  proceedings  to  punish  for  contempt,  though 
the  mandamus  was  directed  to  the  body  or  tribunal,  as 
such,  the  individuals  alone,  who  disobey,  will  be  punished.2 
"Where  it  is  held  that  a  mandamus  to  compel  action  by  a 
public  body  may  be  brought  against  the  individuals  com- 
posing such  body,  the  doctrine  of  discontinuance  does  not 
apply  relative  to  the  members  not  served,  and  a  court 
would  err  if  it  allowed  the  relator  to  discontinue  the  pro- 
ceedings as  to  those  not  served.3  When  the  writ  is  directed 
to  a  municipal  corporation,  as  such,  under  the  common  law 
it  is  to  be  delivered  to  the  mayor  thereof  or  other  chief 
officer,  as  the  most  visible  part  of  the  corporation.4  When 
the  writ  is  against  a  private  corporation,  by  the  common 
law  it  should  be  served  on  the  head  officer  of  the  company, 
or  upon  the  select  body  within  the  corporation  whose  prov- 
ince it  is  to  put  in  motion  the  machinery  necessary  to  se- 
cure performance  of  the  duty  commanded,  or  upon  that 
superior  officer  who  would  be  expected  to  carry  out  a  gen- 
eral order  of  the  governing  body  of  the  corporation  for  the 
doing  of  the  thing  enjoined  by  the  writ,  the  command  of 
the  writ  standing  for  the  corporate  order.5  But  the  mode 
of  service  of  all  legal  writs  is  regulated  by  statute,  where 
the  necessary  guidance  in  the  matter  must  be  sought. 

§  238.  Does  the  writ  abate  upon  the  resignation  or 
expiration  of  the  term  of  office  of  the  respondent?  — 
Whether  if  an  officer  resigns  or  goes  out  of  office  during 
the  pendency  of  mandamus  proceedings  against  him,  the 

i  Fuller  v.  Plainfield  A.  School,  6  3  Eufaula  (City  Coun.)  v.  Hick- 
Conn.  532.  man,  57  Ala.  338. 

2  People  v.  Champion,  16  John.  4Regina  v.  Chapman,  6  Mod.  R. 

61 ;  St.  Louis  Co.  Court  v.  Sparks,  152 ;  People  v.  Cairo  (City  Council), 

10    Mo.    117;     Houston    (City)    v.  50  111.  154. 

Emery,  76  Tex.  321 ;  Eufaula  (City  6  State  v.  Penn.  R.  R.,  42  N.  J.  L. 

Coun.)  v.  Hickman,  57  Ala  338.  490. 


300  PARTIES    TO    MANDAMUS    PROCEEDINGS.  [§  238. 

cause  can  be  further  prosecuted,  or  revived  against  his  suc- 
cessor, is  a  matter  upon  which  there  is  a  difference  of  opin- 
ion. On  the  one  hand  it  is  held  that  the  cause  may  con- 
tinue ;  that  the  proceeding  is  against  the  officer,  and  not 
against  the  individual ;  and  that  such  a  course  is  necessary 
for  the  due  administration  of  justice,  since  otherwise  the 
court  might  be  baffled  by  regular  changes  in  office,  or  by 
resignations  made  for  that  purpose.1  It  has  also  been  held 
that  the  writ  may  be  revived  against  the  successor  of  the 
respondent,2  or  it  may  proceed  after  a  suggestion  on  the 
record  of  the  change  of  respondent ; 3  and  where  an  officer's 
term  had  expired  before  he  had  obeyed  a  peremptory  writ, 
a  rule  was  granted  for  the  successor  to  show  cause  why  he 
should  not  be  made  a  party  to  the  proceedings  and  a  per- 
emptory writ  issued  against  him.4  On  the  other  hand  it  is 
held  that  the  death  or  resignation  of  an  officer  abates  a 
mandamus  proceeding  against  him ;  that  no  matter  out  of 
what  facts  or  relations  the  duty  has  grown,  what  the  law 
regards  and  what  it  seeks  to  enforce  by  this  writ  is  the 
personal  obligation  of  the  individual  to  whom  it  addresses 
the  writ ;  if  he  be  an  officer  and  the  duty  be  an  official  act, 
still  the  writ  is  aimed  exclusively  against  him  as  a  person, 
and  he  only  can  be  punished  for  disobedience.  The  writ 
does  not  reach  the  office.  It  cannot  be  directed  to  it.  In 
proceedings  by  mandamus  a  demand  is  necessary,  and  if  a 
demand  were  made,  the  successor  might  comply  with  its 
requirements.  It  was  considered  that  a  statute  was  neces- 
sary to  allow  mandamus  proceedings  to  be  continued 
against  the  successor  of  the  respondent.5     When  the  man- 

i  State  v.    Gates,    22  Wis.    210 ;  2  Hardee  v.  Gibbs,  50  Miss.  802. 

State  v.  Packett,  7  Lea,  709 ;  People  So  implied  in  State  v.  Guthrie,  17 

v.  Wexford  Co.  Treas.,  37  Mich.  351 ;  Neb.  113. 

State    v.     Warner,    55    Wis.    271 ;  3  Lindsey  v.  Kentucky  (Auditor). 

Rochester  (Mayor)  v.  Queen,  27  L.  3  Bush,  231. 

J.  Q.  B.  434;  People  v.  Collins,  19  *  pe0ple  v.  Barnett  (Sup'r),  100  111. 

Wend.   56;    People    v.    Bacon.    18  332. 

Mich.   247;    Clark  v.    McKenzie,  7  s  United  States  v.    Boutwell,    17 

Bush,   523;    Doolittle  v.    Branford  Wall.   604;   Secretary  v.  McGarra- 

(Selectmen),  59  Conn.  402.  ban,   9  Wall.  298.     It  is  difficult  to 


§  239.]  PARTIES    TO    MANDAMUS    PROCEEDINGS.  301 

damns  proceeding  is  allowed  to  continue,  though  the  re- 
spondent has  gone  out  of  office,  without  any  notification  to 
his  successor,  and  the  peremptory  writ  is  issued,  proceed- 
ings for  contempt  will  not  be  sustained,  unless  some  notice 
of  the  court's  action,  or  a  request  to  him  to  obey  such 
order,  has  been  served  on  such  successor.1 

§  239.  When  the  resignation  alone  does  not  vacate  the 
office,  such  resignation  may  be  disregarded  till  the  office 
is  legally  vacated. —  Where,  however,  an  officer's  resigna- 
tion by  law  is  not  effective  till  it  is  properly  accepted  or 
his  successor  has  qualified,  it  may  be  disregarded  in  such 
proceedings  till  it  has  been  accepted  or  his  successor  has 
qualified ; 2  but  ordinarily  a  resignation  is  effective  so  soon 
as  it  is  made.3  Where  a  charter  was  repealed,  but  the  exist- 
ing officers  were  continued  with  power  to  levy  and  collect 
taxes  to  pay  the  debts  of  the  municipality,  the  court  denied 
their  power  to  resign  with  a  view  to  escape  from  such  du- 
ties, where  the  law  had  made  no  provision  for  the  discharge 
of  those  duties  by  others  or  for  successors  to  the  incum- 
bents.4    Since  the  proceedings  in  writs  of  mandamus  have 

reconcile  these  decisions  with  the  of  office  have  been  those  of  officers 

subsequent  one    of    Thompson    v.  of  the  government,  whose  alleged 

United  States,   103  U.  S.   480.     In  delinquency  was  personal,  and  did 

the  latter  case,  which  was  a  pro-  not  involve  any  charge  against  the 

ceeding  to  compel  a  town  clerk  to  government    whose    officers    they 

make  and  deliver  to  the  supervisor  were."    Why  do  not  all   cases  of 

of  the  town  a  copy  of  a  judgment  mandamus    against     officers     fall 

against  the  town,  in  order  that  the  under  this  category? 

latter  might  include  it  in  Ins  tax  1  State  v.  Warner,  55  Wis.  271. 

levy,  the  court  held  that  the  pro-  2  United  States  v.  Badger,  6  Biss. 

ceedings  did  not  abate  by  the  resig-  308 ;    S.    C.   as    Badger    v.   United 

nation    of    the  town   clerk.      The  States,  93  U.  S.  599 ;  Jones  v.  Jef- 

court,  however,  endeavored  to  dis-  ferson  City,  66  Tex.  576 ;  Edwards 

tinguish     this     case     from     other  v.  United  States,  103  U.  S.  471. 

cases  in  which  it  had  held  that  the  3  State  v.  Lincoln  (Mayor),  4  Neb. 

writ  abated  by  such  resignation.  260 ;  Amy  v.  Watertown,  130  U.  S. 

The  court  said  that  "the  cases  in  301. 

which    it    has  been  held  by  this  4  Gorgas  v.  Blackburn,  14  Ohio, 

court    that    an    abatement    takes  252. 
place  by  the  expiration  of  the  term 


302  PAKTIES    TO   MANDAMUS   PROCEEDINGS.  [§  240. 

been  largely  an  outgrowth  of  judicial  legislation,  it  would 
seem  but  proper  to  allow  their  revival  against  the  successor 
of  the  respondent  in  accordance  with  the  dictates  of  jus- 
tice. Some  courts  have  considered  it  to  be  better  to  bring 
the  writ  against  the  officer  by  the  title  of  the  office,  omit- 
ting his  own  name,  to  avoid  any  inconvenience  from  change 
of  person  in  the  office ; *  and  precedents  therefor  may  be 
found  among  the  early  cases.2 

§  240.  When  a  corporation  or  a  select  body  is  the  re- 
spondent, no  change  in  its  membership  will  affect  the 
proceedings. —  When,  however,  the  writ  of  mandamus  is 
brought  against  a  corporation,  or  a  select  body  or  board,  it 
is  universally  agreed  that  the  proceedings  will  be  in  no  way 
affected  by  any  change  in  the  membership  of  such  body  or 
board,  since  a  body  is  always  in  existence  to  discharge  the 
duty  required  of  it.3  The  performance  of  the  duty  will  be 
required  of  those  in  office  when  the  peremptory  writ  issues, 
and  they  will  be  held  responsible  for  any  disobedience.4 
Where,  however,  a  municipal  corporation  has  been  abol- 
ished and  its  functions  have  been  distributed  among  two 
new  corporations,  each  of  which  has  a  different  jurisdiction 
from  thatt)f  the  former  corporation,  and  upon  neither  has 
the  power  been  conferred  to  do  the  act  desired,  though  the 
former  corporation  possessed  such  power,  in  such  cases  a 
mandamus  will  not  lie  to  compel  the  performance  of  such 
act.     The  only  remedy  is  an  application  to  the  legislature.* 

1  Chance  v.  Temple,  1  Iowa,  179 ;  State  v.  Madison  (City),  15  Wis.  30 ; 
State  v.  Elkinton,  30  N.  J.  L.  335.  Sheaff  v.  People,  87  111.  1L9 ;  State 

2  Reg.  v.  Clitheroe,  6  Mod.  133.  v.   New  Orleans.   35    La.   An.   68; 

3  Com'rs  v.  Sellew,  99  U.  S.  624 ;  Hollon  Parker,  Petitioner,  131  U.  S. 
United     States     v.    Dubuque    Co.  221. 

(Com'rs),    Morris,    31 ;    Pegram    v.  4  State  v.  Madison  (City),  15  Wis. 

Cleaveland   Co.  (Com'rs),  65  N.  C.  30 ;  Columbia  Co.  (Com'rs)  v.  Bry- 

114:  Columbia  Co.  (Com'rs)  v.  Bry-  son,  13  Fla.  281 ;  Pegram  v.  Cleave- 

son,  13  Fla.  281 ;  Fisher  v.  Charles-  land  Co.    (Com'rs),   65   N.    C.  114; 

ton  (City),  17  W.  Va.  595 ;  State  v.  ComVs  v.  Sellew,  99  U.  S.  624. 

CutWrie,  17  Neb.   113;  Doolittle  v.  ^Barkley    v.    Levee    Com'rs,    93 

Branf  ord  (Selectmen),  59  Conn.  402 ;  U.  S.  258. 


§§  241,  242.]      PARTIES   TO   MANDAMUS    PROCEEDINGS. 


303 


.  §  241.  Mandamus  not  lie  to  one  haying  no  duty  in  the 
premises,  or  who  has  gone  out  of  office. —  Parties  who 
have  no  duties  in  the  premises  or  whose  term  of  office  has 
expired,  or  whose  offices  have  been  abolished,  cannot  be 
made  respondents  in  proceedings  by  mandamus.  A  man- 
damus will  not  lie :  to  a  canvassing  board  to  re-assemble  and 
count  tlie  votes  after  the  repeal  of  the  law  by  which  such 
board  was  created ; !  to  compel  the  mayor  of  a  municipality 
to  act  as  such  after  the  abolition  of  such  municipality  by 
statute;2  to  make  a  judge  sign  a  bill  of  exceptions  after  he 
has  gone  out  of  office ; 3  to  compel  an  assessor  to  assess  cer- 
tain property,  when  he  has  no  longer  any  control  over  the 
assessment ; 4  or  to  compel  a  party  to  do  any  official  act, 
when  he  is  functus  officio,  and  the  act  is  not  within  his 
power.5  Though  there  is  some  contrariety  of  opinion  as  to 
whether  a  canvassing  board,  after  it  has  declared  the  result 
of  the  count  of  the  votes  and  adjourned  sine  die,  can  be  re- 
quired to  reconvene  and  recount  the  votes  in  a  proper  man- 
ner, yet  the  weight  of  opinion  is,  that  their  duties  continue 
till  they  have  discharged  their  duties  properly,  in  the  ab- 
sence of  a  law  limiting  the  existence  of  the  board,  and  that 
they  can  be  compelled  to  reconvene.6 

§  242.  Can  third  parties  he  subsequently  Drought  in 
as  relators  or  respondents? — Whether  after  mandamus 
proceedings  have  been  instituted  other  persons  can  be 
made  parties  thereto,  either  at  their  own  request,  or  by 
order  of  court  on  suggestion  or  at  its  own  motion,  is  a 
question  which  has  often  been  considered  by  the  courts. 
Some  courts  have  denied  the  propriety  of  such  proceedings, 
claiming  that  the  only  parties  to  a  mandamus  proceeding 
are  the  relator,  who  claims  to  be  entitled  to  the  perform- 
ance by  an  officer  of  some  duty  imposed  on  him  by  law, 

i  Mackey,  Ex  parte,  15  S.  C.  322 ;  5  State  v.  Waterman,  5  Nev.  323 ; 

State  v.  Gibbs,  13  Fla.  55.  Lamar    v.   Wilkins,    28    Ark.    34 ; 

2  State  v.  Steen,  43  N.  J.  L.  542.  Mason  v.  School  Dist,  20  Vt  487. 

^  Ante,  §193.  *  Ante,  §  185. 
4  State  v.  Archibald,  43  Minn.  328. 


304  PARTIES    TO   MANDAMUS   PROCEEDINGS.  [§  242. 

and  the  officer  who  refuses  to  perform  such  duty.1  A  man- 
damus proceeding  was  instituted  to  compel  the  levy  of  a 
tax  to  pay  a  debt  claimed  to  be  due  to  A.  Citizens  of  the 
borough  asserted  a  right  to  intervene  and  defend,  and 
alleged  fraud  and  collusion  between  A.  and  the  borough 
authorities.  The  court  refused  their  application,  stat- 
ing that  they  had  no  common-law  right  to  intervene.2 
"Where  an  application  was  made  to  compel  by  mandamus 
the  clerk  of  a  common  council  to  amend  his  record  so  as 
to  show  the  appointment  of  the  relator  by  the  council  as  a 
policeman  in  the  place  of  A.,  it  was  held  that  neither  A.  nor 
the  city  was  a  necessary  or  proper  party  to  the  action,  that 
the  question  was  merely  as  to  the  truth  of  a  record,  and 
that  the  effect  of  the  proceeding  on  the  rights  of  others 
was  immaterial.3  Certainly  a  third  party  should  not  be 
allowed  to  intervene  as  a  relator,  and  claim  affirmative  re- 
lief in  his  own  behalf,  thus  introducing  a  foreign  element 
into  a  suit  brought  by  another.  Where  a  city  treasurer 
sought  to  obtain  by  mandamus  money  belonging  to  the 
city  in  the  hands  of  the  county  treasurer,  the  interplea  of 
another,  who  claimed  himself  to  be  the  city  treasurer,  ask- 
ing that  the  money  be  ordered  to  be  paid  to  him,  was 
dismissed,  nor  was  he  allowed  to  appeal  from  the  judgment 
rendered,  since  he  was  not  a  party  to  the  proceeding.4  A 
town  treasurer  asked  for  a  mandamus  to  compel  the  pay- 
ment to  him  of  money  collected  by  the  sheriff  for  the 
benefit  of  the  town.  The  sheriff  in  his  return  admitted  the 
collection  of  the  money  mentioned,  but  averred  that  the 
county  officers  had  ordered  him  to  pay  it  to  the  county 
treasurer,  averred  that  he  was  indifferent  as  to  the  matter, 
and  prayed  that  tjie  county  be  made  a  party  to  the  pro- 
ceedings. The  county  filed  an  interplea,  praying  to  be 
made  a  party  thereto,  and  setting  up  a  defense  to  the  writ. 
The  court  decided  that  the  county  had  no  claim  to  be  made 

1  State  v.  Smith,  7  Rich.  (N.  S.)  275 ;        3  Farrell  v.  King,  41  Conn.  448. 
State  v.  Williams,  96  Mo.  13.  4  Winstanley  v.  People,  92  IlL  402. 

2Hower's  Appeal,  127  Pa.  St  134. 


§  2-t2#.]  PARTIES   TO   MANDAMUS    PROCEEDINGS.  305 

a  party  to  the  proceedings,  and  that  the  respondent  could 
not  by  his  answer  turn  a  mandamus  proceeding  into  a  bill 
of  interpleader.1 

§  242a.  Subject  continued. — There  are,  however,  so  many 
decisions  that  a  third  party,  whose  interests  are  affected  by 
the  proceedings,  may  be  brought  into  them  as  a  respond- 
ent, that  such  may  be  considered  to  be  the  general  rule.  In 
a  mandamus  proceeding  to  compel  the  election  of  a  mayor 
of  a  borough,  wherein  a  prior  election  was  claimed  to  be 
void,  the  court  ordered  that  the  mayor  de facto  be  served, 
asserting  that  common  justice  required  he  should  be  heard 
in  his  defense  before  an  order  was  issued  to  elect  another 
person  in  his  place.2  Upon  the  filing  of  an  application  for 
a  rule  on  the  judges  of  a  court  to  show  cause  why  a  man- 
damus should  not  issue  directing  them  to  admit  the  relator 
as  clerk  of  their  court,  it  was  ordered  that  the  incumbent 
of  the  office  should  be  notified  of  the  proceedings.3  Upon 
an  application  for  a  mandamus  to  compel  the  board  of  ex- 
aminers to  give  a  certificate  of  election  to  the  relator, 
though  they  had  already  issued  a  certificate  to  A.,  the  court 
ordered  that  notice  of  the  proceedings  be  given  to  A. ; 4 
and  in  a  similar  case  a  notice  was  ordered  to  be  given  to 
the  incumbent  of  the  office.5  A  mandam  us,  to  make  a  judge 
render  judgment  in  a  case  on  an  alternative  verdict  accord- 
ing to  the  election  of  the  plaintiff,  was  refused  without 
prejudice,  and  with  liberty  to  review  the  application  after 
notice  thereof  had  been  given  to  the  defendant  in  such  case.6 
In  a  proceeding  by  mandamus  to  compel  the  road  overseer 
to  remove  certain  fences  placed  across  a  highway,  the  court 
required  the  party  who  owned  the  land  where  the  fences 
were,  and  who  had  put  them  up,  to  be  made  a  party  de- 
fendant and  to  be  served  with  notice.7  In  a  case  where 
the  supervisors  were  ordered  to  remove  trees  from  a  road, 

1  State  v.  Burkhardt,  59  Mo.  75.  4  Luce  v.  Mayhew,  13  Gray,  83. 

2  Rex  v.  Bankes,  3  Burr.  1452.  5  Strong,  Petitioner.  20  Pick.  484 

3  Dew  v.  Sweet  Springs  (Judges),  3  6  State  v.  Mills,  27  Wis.  403. 
Hem.  &  M.  1.  7  Larkin  v.  Harris,  36  Iowa,  93. 

20 


306  PARTIES   TO   MANDAMUS    PROCEEDINGS.  [§  242a. 

the  person  who  was  benefited  by  the  trees  was  made  a  party 
to  the  proceedings,  and  apparently  without  objection.1  In 
a  proceeding  to  compel  the  granting  of  the  probate  of  a 
will  to  the  executors  thereof,  it  was  ordered  that  the  cestuis 
que  trust  be  notified  and  allowed  to  answer.2  When  in  a 
mandamus  proceeding  to  compel  the  auditor  of  state  to 
issue  a  certificate  to  the  relator,  the  return  stated  that  B. 
had  obtained  an  injunction  against  his  so  doing,  the  court 
required  B.  to  be  made  a  party  to  the  proceedings  before  a 
peremptory  writ  would  be  granted.3  In  a  mandamus  pro- 
ceeding to  compel  a  justice  of  the  peace  to  assess  the  damages 
in  a  replevin  suit  which  he  had  dismissed,  the  plaintiff  in 
the  replevin  suit  was  made  a  respondent,  and  the  court  as- 
sessed the  costs  of  the  proceedings  against  him.4  In  a  pro- 
ceeding to  compel  a  returning  officer  to  issue  to  the  relator 
a  certificate  of  election,  a  third  party  who  claimed  to  have 
been  elected  asked  to  be  made  a  party  to  the  proceedings, 
and  asserted  that  the  return  of  the  respondent  was  evasive 
and  collusive.  The  court  ordered  that  such  third  party  be 
admitted  as  a  party,  unless  the  respondent  properly  cor- 
rected his  return  as  to  the  matters  objected  to.5  In  a  pro- 
ceeding to  compel  a  county  treasurer  to  execute  tax  deeds 
for  lands  sold  for  taxes,  the  owner  of  the  land  was  allowed 
to  intervene.6  In  proceedings  to  compel  a  tax  collector  to 
pay  money  collected  as  taxes,  which  after  litigation  had 
been  declared  to  be  legal,  into  the  public  treasury  at  the 
time  required  by  law,  intervenors  were  allowed  to  become 
parties  thereto.7  Where  a  party  tried  by  this  proceeding 
to  compel  the  state  treasurer  to  recognize  him  as  the  fiscal 
agent  of  the  state  and  to  deposit  with  him  all  the  public 
funds,  the  state  was  allowed  to  intervene.8  Where  there 
was  an  effort  to  procure  a  mandamus  to  compel  the  elec- 

i  Patterson  v.  Vail,  43  Iowa,  142.  5  State  v.  Williams,  99  Mo.  291. 

2 Rex  v.  Simpson,  3  Burr.  1463.  estate  v.  Patterson,  11  Neb.  266. 

3  Livingston     v.     McCarthy,     41  7  People  v.  Austin,  46  Cal.  520. 

Kans.  20.  8  State  v.  Dubuclet,  27  La.  An.  29. 
*  Johnson  v.  Dick,  69  Mich.  10a 


§  243.]  PARTIES   TO   MANDAMUS   PROCEEDINGS.  307 

tion  board  to  recanvass  the  votes  for  the  location  of  the 
county  seat,  citizens  were  allowed  to  intervene  on  their 
allegation  of  collusion  and  fraud  between  the  relator  and 
the  respondents  relative  to  such  recanvass.1  To  an  appli- 
cation to  compel  a  sheriff  to  serve  a  warrant  of  arrest  on 
A.  and  carry  him  before  a  justice  of  the  peace  for  trial,  A. 
was  allowed  to  appear  by  attorney  in  opposition  to  the  ap- 
plication.2 It  was  considered  that,  in  order  to  be  allowed 
to  intervene  in  such  cases,  the  applicant  must  show  that  he 
will  either  gain  or  lose  by  the  direct  legal  operation  or 
effect  of  any  decision  that  may  be  rendered  therein.3  To 
an  application  to  compel  a  railroad  company  to  receive  and 
recognize  A.  as  a  director,  instead  of  B.,  who  was  acting  as 
such,  the  court  refused  to  consider  the  matter  until  B.  was 
made  a  party  to  the  proceedings.4 

§  243.  Third  persons  interested  should  be  allowed  to 
intervene  or  should  be  made  parties. —  It  would  seem  to 
be  but  proper  for  the  relator  in  the  first  instance  to  make 
a  third  person  a  party  to  the  mandamus  proceedings,  as  a 
respondent  therein,  in  all  cases  where  he  has  such  interests 
in  the  matter  that  the  court  upon  application  will  order 
that  he  be  made  a  party.  Furthermore,  for  the  enlighten- 
ment of  the  court  and  the  furtherance  of  justice,  it  is  desir- 
able that  the  party  representing  the  adverse  interest  should 
be  a  party  to  the  proceedings,  especially  as  the  officer,  who 
is  the  actual  respondent,  is  often  indifferent  on  the  subject. 
In  one  case,  where  a  third  party's  intervention  in  the  pro- 
ceedings was  dismissed,  the  court  recognized  the  necessity 
for  the  presentation  of  his  defense  by  stating  that  he  might 
advance  it  by  using  the  respondent's  return  for  that  pur- 
pose, the  respondent  assenting  thereto.5    Owing  to  the  con- 

1  State  v.  Matley,  17  Neb.  564.  The  same  court  in  a  subsequent 

2Beecher  v.  Anderson,  45   Mich,  case    was    compelled    to  issue  an 

543.  order  that  the  respondent,  who  was 

3  State  v.  Wright,  10  Nev.  167.  indifferent  as  to  the  result,  should 

4  Cross  v.  West  Va,  etc.  R  R.,  34  amend  his  return  in  order  to  pro- 
W.  Va.  742.  tect  the  rights  of  a  third  party,  or 

5  State  v.  Burkhardt,  59  Ma  75.  in  default  thereof  such  third  party 


308  PARTIES   TO   MANDAMUS    PROCEEDINGS.  [§  244. 

flict  in  the  decisions,  it  seems  better  not  to  make  a  party 
a  respondent  in  the  proceedings,  when  there  is  any  doubt 
as  to  the  propriety  thereof,  and  to  leave  the  matter  to  the 
court,  which  can  order  that  such  parties  be  added  as  re- 
spondents, if  it  deems  it  proper.1 

§  244.  Third  parties  not  allowed  to  intervene  to  liti- 
gate matters  not  involved  in  the  mandamus  proceed- 
ings.—  When,  however,  the  interests  sought  to  be  protected 
cannot  properly  be  litigated  in  mandamus  proceedings,  the 
parties  will  not  be  allowed  to  appear  therein  as  respond- 
ents. In  a  mandamus  proceeding  to  compel  the  auditor  of 
state  to  draw  his  warrant  on  the  state  treasurer,  a  party 
claiming  a  lien  upon  the  debt  due  from  the  state  to  the  re- 
lator will  not  be  allowed  to  intervene  in  order  to  litigate 
with  the  relator  the  validity  of  his  claim.2  So  when  a  party 
applied  for  a  mandamus  to  compel  the  proper  city  officer 
to  record  his  judgment  against  the  city,  as  required  by  law, 
and  the  officer  in  his  return  claimed  that  such  judgment 
could  only  be  recorded  against  certain  funds  collected  by 
the  city  for  the  benefit  of  A.,  and  asked  for  a  rule  for  A.  to 
show  cause  why  this  should  not  be  done,  which  rule  was 
granted,  the  appellate  court  in  its  review  decided,  that  a 
third  party  could  not  be  brought  in  to  answer  a  call  made 
upon  an  officer  to  perform  a  mere  ministerial  duty.3 

would  be  admitted  as  a  party  to        l  State     v.    Johnson    Co.     (Bel. 

the  proceedings.  State  v.  Williams,    Equal.),  10  Iowa,  157. 

99  Mo.  291.  2  Hewitt  v.  Craig,  86  Ky.  23. 

3  State  v.  Brown,  28  La.  An.  103. 


CHAPTER  19. 

PLEADINGS   AND  PRACTICE  IN   MANDAMUS   PROCEEDINGS. 

§  245.     First  proceeding  is  a  motion  asking  for  the  writ 

246.  The  motion  for  a  mandamus  must  be  verified. 

247.  The  affidavits  for  the  motion  should  be  entitled  of  the  court  but 

not  of  the  causa 

248.  Sufficiency  of  the  jurat  to  the  petition  for  a  mandamus. 

249.  Action  of  the  court  on  the  petition  for  a  mandamus. 

250.  When  the  court  will  grant  the  alternative  writ  on  the  motion  to 

show  cause. 

251.  When  the  court  will  issue  a  peremptory  writ  without  any  notice 

to  the  respondent 

252.  Action  of  the  court  on  the  hearing  of  the  motion  to  show  cause. 

253.  The  alternative  writ  becomes  the  first  pleading  in  the  cause. 

254.  Particularity  of  statement  required  in  the  alternative  writ. 

255.  Subject  continued 

256.  Illustrations  of  the  particularity  required  in  the  writ 

257.  The  alternative  writ  must  show  that  the  proper  demand  of  per- 

formance was  made  or  the  facts  rendering  a  demand  unnec- 
essary. 

258.  A  refusal  by  the  respondent  to  act  must  be  alleged  in  the  alter- 

native writ  or  the  facts  equivalent  to  a  refusal. 

259.  The  alternative  writ  must  show  that  the  relator  has  no  legal 

remedy  except  the  writ  of  mandamus. 

260.  Particularity  required  in  the  mandatory  clause  of  the  alternative 

writ. 

261.  Documents  of  importance  in  the  case  should  accompany  a  peti- 

tion for  a  mandamus. 

262.  The  alternative  writ  should  conform  to  the  petition. 

263.  Mode  of  setting  out  the  facts  in  the  alternative  writ 

264.  The  manner  in  which  mandamus  proceedings  are  entitled. 

265.  Where  there  is  an  informality  in  the  alternative  writ  an  alias 

may  issue. 

266.  Proceeding  when  no  return  is  made  to  the  alternative  writ 

267.  A  return  of  obedience  to  the  alternative  writ 

268.  The  early  practice  in  mandamus  proceedings. 

269.  When  a  motion  lies  to  quash  the  alternative  writ 

270.  Demurrer  to  the  alternative  writ 


310  PLEADINGS    AND    PRACTICE. 

§  271.     Amendment  to  alternative  writ 

272.  Return  after  the  overruling  of  the  demurrer  to,  or  motion  to 

quash,  the  alternative  writ 

273.  No  prescribed  form  for  a  return,  but  it  must  contain  the  neces- 

sary allegations. 

274.  Certainty  and  completeness  of  statement  required  in  a  return. 

275.  Certainty  required  in  a  return  to  a  writ  to  restore  a  party  re- 

moved from  office  or  membership  in  a  corporation. 

276.  A  return  is  sufficient  which  follows  the  suggestions  of  the  writ. 

277.  Several  defenses  may  be  stated  in  a  return. 

278  Pendency  of  other  litigation  pleaded  in  abatement. 

279.  Pleas  puis  darrein  continuance. 

280.  Positiveness  of  allegation  required  in  a  return. 

281.  Instances  of  returns  whicli  were  adjudged  to  be  insufficient 

282.  Who  shall  make  the  return. 

283.  Verification  of  the  return. 

284.  Treatment  of  a  return  which  is  evasive  or  frivolous. 

285.  Demurrer  to  a  return  and  rules  governing  it 

286.  Subject  continued. 

287.  Amendment  of  return. 

288.  Reply  to  the  return. 

289.  Reply  and  subsequent  proceedings. 

290.  Trial  by  jury. 

291.  Relator  must  prove  his  right  to  all  he  asks  for. 

292.  General  rules  of  practice  and  of  pleading  as  applicable  to  man- 

damus proceedings. 

293.  Amendments  under  the  early  practice. 

294.  Amendments  under  the  present  practice. 

295.  All  the  issues  must  be  disposed  of  before  the  peremptory  writ 

will  issue. 

296.  How  far  the  peremptory  writ  must  conform  to  the  alternative. 

297.  When  the  peremptory  writ  will  be  quashed,  or  disobedience  of  it 

excused. 

298.  Attachment  for  making  no  return  to  or  for  not  obeying  a  per- 

emptory writ. 

299.  The  peremptory  writ  must  be  fairly  and  honestly  complied  with. 

300.  Defenses  which  may  be  urged  against  an  attachment  on  the 

hearing  of  a  motion  to  show  cause  why  an  attachment  should 
not  issue  for  disobeying  a  peremptory  mandamus. 

301.  Defects  appearing  on  the  papers,  on  account  of  which  an  attach- 

ment for  disobedience  of  a  peremptory  writ  of  mandamus  will 
be  refused. 

302.  Proceedings  when  a  party  is  adjudged  guilty  of  contempt  of 

court. 

303.  Proceedings  for  contempt  of  court  against  corporations  and 

boards. 


§  245.]  PLEADINGS    AND   PEACTICE.  311 

§  304.     When  an  appeal  lies  in  a  mandamus  proceeding  under  English 
law. 

305.  An  appeal  is  granted  in  America,  in  mandamus  proceedings, 

whenever  the  action  taken  is  considered  to  be  a  final  judg- 
ment. 

306.  Appeal  or  writ  of  error  lies  if  the  writ  is  refused  on  the  reading 

of  the  petition. 

307.  Proceedings  in  review  in  the  appellate  court. 

308.  The  right  to  review  mandamus  proceedings  by  appeal  or  writ  of 

error  does  not  always  exist 

309.  Is  a  peremptory  mandamus  suspended  by  an  appeal  with  an  in- 

demnifying bond? 

310.  Costs  in  mandamus  proceedings. ' 

§  245.  First  proceeding  is  a  motion  asking  for  the 
writ. —  The  usual  course  in  applying  for  a  mandamus  is  to 
make  a  motion  in  open  court,  founded  upon  an  affidavit  or 
a  sworn  petition.1  Affidavits  which  were  introduced  in 
such  cases  might  be  made  by  third  parties,2  who  were  not  in- 
terested and  were  competent.3  The  proceedings  are  often 
regulated  by  statute,4  but  it  is  not  believed  that  such  statutes 
depart  much  from  the  common-law  practice.  In  one  state 
it  is  permissible  in  a  suit  at  law  to  ask  in  the  complaint  for 
a  mandamus  to  enforce  the  judgment  when  obtained,5  which 
is  in  conformity  with  the  recent  legislation  in  England. 
In  some  courts  leave  must  first  be  obtained  from  the  court 
before  it  is  admissible  to  make  an  application  for  a  man- 
damus? The  usual  practice  nowT  is  for  the  relator  to  file  a 
petition  which  contains  all  the  averments  necessary  to  put 
the  court  in  full  possession  of  all  the  facts  in  the  case,  and 
shows  the  necessity  for  the  relief  desired,  and  at  the  same 
time  requests  such  relief. 

i  Potts  v.  State,  75  Ind.  336;  Ter.  3  Cannon  v.  Janvier.  3  Houst  27. 

v.   Potts,   3    Mont   364;    State    v.  <Cook  v.  Tannar,  40  Conn.  378; 

Gracy,    11    Nev.     220;     Fisher    v.  State  v.  Jefferson  (PoL  Jury),  33  La. 

Charleston  (City),  17  W.  Va.  595 ;  An.  29. 

Long  v.  State,  17  Neb.  60.     Some-  5  Fry  v.  Montgomery  Co.  (Com'rs), 

times  the  motion  itself  is  in  writing.  82  N.  C.  304. 

Stafford  v.  Union  Bank,  17  How.  6  People  v.  Thistlewood,   103  111. 

275.  139 ;  Hawkins  v.  Hardin,  35  I1L  Ap. 

2  Swan  v.  Gray,  44  Miss.  393.  25. 


312  PLEADINGS    AND   PRACTICE.  [§  24:6. 

§  246.  The  motion  for  a  mandamus  must  be  verified. — 

Whether  the  statute  requires  that  the  petition  for  a  man- 
damus be  sworn  to  or  sustained  by  affidavit,1  or  not,  yet 
the  courts  themselves  will  require  such  petitions  to  be  so  sus- 
tained.2 Where  the  court  was  asked  to  issue  a  mandamus 
to  the  judge  of  a  lower  court  relative  to  certain  litigation 
then  pending  before  him,  the  court  examined  the  certified 
record  of  that  litigation,  and  decided  that  his  action  was  to 
be  presumed  to  be  correct  in  the  absence  of  a  prima  facie 
showing  to  the  contrary  sustained  by  affidavit.  The  court 
thereupon  dismissed  the  proceedings,  though  the  writ  was 
asked  for  by  the  attorne}r-general  in  his  official  capacity.3 
In  a  subsequent  case  the  same  court  examined  the  record 
of  the  lower  court,  of  which  a  certified  copy  was  filed  with 
the  petition,  but  refused  to  consider  the  statements  of  the 
petition  because  it  was  not  verified.4  It  is  asserted  that 
the  verification  is  required,  lest  the  time  of  the  court  should 
be  taken  up  with  frivolous  applications.5  The  petition  and 
the  affidavit  need  not  be  separate  papers.6  There  have  been 
a  few  cases  where  affidavits  were  not  demanded.  Where  the 
attorney-general  asked  for  a  mandamus  in  behalf  of  the 
state,  an  affidavit  was  not  required.7  In  a  matter  of  right, 
as  where  a  mandamus  was  asked  to  restore  a  person  to 
office,  it  was  stated  that  an  affidavit  of  the  facts  was  not 
required,  but  that  it  was  required  when  a  failure  of  duty 
was  charged  against  an  officer.8 

i  Lafayette  (City)  v.  State,  69  Ind.        5  Black  v.  Auditor,  26  Ark.  237. 
218  6  Golden  C.  Co.  v.  Bright,  8  Colo. 

2  Brown    v.   Ruse,   69  Tex.   589;     144. 

Curser  and  Smith,  1  Barn.  (K.B.)  59;  'State   v.  Wilmington   B.  Co.,  3 

Postmaster-Gen.  v.  Trigg,  11   Pet,  Harring.  312;    Woodruff   v.    New 

173 ;  Poultney  v.  La  Fayette  (City),  York,  etc.  R.  R,  59  Conn.  63 ;  Doo- 

12   Pet  472;  Hardee  v.   Gibbs,  50  little  v.   Branford  (Selectmen),   59 

Miss.  802 ;  Hall  v.  Crossman,  27  Vt  Conn.    402.      Contra,    Postmaster- 

297.  General  v.  Trigg,  ante. 

3  Postmaster-General  v.  Trigg,  11  8Q.  v.  Cory,  3  Salk.  230;  People 
Pet  173.  v.  Chicago  (City),  25  111.  483. 

«  Poultney  v.  La  Fayette  (City),  12 
Pet  472. 


§  247.]  PREADINGS    AND    PRACTICE.  313 

§  247.  The  affidavits  for  the  motion  should  he  entitled 
of  the  court,  hut  not  of  the  cause. —  The  affidavits  offered 
upon  an  application  for  a  mandamus,  or  the  petition  which 
is  generally  verified  and  presented  as  an  affidavit,  should  be 
entitled  of  the  court  to  which  the  presentation  is  made, 
but,  it  is  said,  should  not  be  entitled  of  a  suit.1  It  was  con- 
sidered that  there  was  no  suit  till  the  court  had  authorized 
proceedings  to  be  taken  in  the  matter,  and  that,  if  the  affi- 
davits were  so  entitled  prior  to  any  action  by  the  court,  it 
would  be  difficult,  if  not  impossible,  to  indict  for  perjury 
on  such  affidavits.2  This  ruling,  in  the  light  of  the  reasons 
assigned  therefor,  seems  to  the  writer  to  be  untenable.  If 
an  indictment  will  lie  on  affidavit  not  entitled  of  a  suit,  the 
writer  does  not  see  why  it  will  not  lie  if  the  affidavit  is  so 
entitled.  The  gravamen  of  the  charge  is  the  falsity  of  the 
statements,  and  the  non-existence  of  the  suit  does  not 
diminish  such  falsity,  but,  if  anything,  increases  it.  Why 
may  not  the  title  of  the  cause  be  rejected  as  surplusage,  as 
has  been  suggested.3  It  is  a  common  practice  in  injunction 
proceedings  and  suits  by  attachment  to  make  affidavits  in 
support  thereof  and  to  entitle  them  of  a  cause,  prior  to  the 
filing  of  any  papers  in  the  court,  and  prior  to  the  institu- 
tion of  the  suit  in  any  manner.  Though  the  courts  have 
ruled  that  these  affidavits  should  not  be  entitled  of  a  cause, 
yet  they  hold  such  matters  to  be  merely  formal,  and  that 
any  objection  to  such  entitling  will  be  considered  to  be 
waived,  unless  it  is  taken  in  Urn  'me,  as  on  the  reading.4  The 
writer  thinks  it  is  advantageous  and  expedient  to  entitle 
the  petition,  which  is  generally  also  the  affidavit,  because 

i  King  v.  Hare,  13  East,  189 ;  Rex  (Board  Equal.),  10  Iowa,  157 ;  Peo- 

v.  Warwickshire  (Just.),   5  Dowl.  pie  v.  Tioga  Com.  Pleas,  1  Wend. 

382.  291 ;  Haight  v.  Turner,  2  John.  370. 

2Hollis  v.  Brandon,  1  Bos.  &  Pul.  3Rex  v.  Warwickshire  (Just),  5 

36 ;  Rex  v.  AVarwickshire  (Just.),  5  DowL  382. 

Dowl.  382 ;  Nohro,  Ex  parte,  1  B.  4  Chance  v.  Temple,  1  Iowa,  179 ; 

&  C.   267 ;    Chance    v.   Temple,   1  State  v.  Johnson  Co.  (Board  EquaL), 

Iowa,  179 ;    State  v.  Johnson  Co.  10  Iowa,  157. 


314  PLEADINGS   AND   PRACTICE.  [§  248. 

it  serves  to  explain  and  identify  such  papers,  and  as  a  guide 
to  the  clerk,  who  may  subsequently  issue  the  alternative 
writ ; '  and  also  because  by  statute  or  agreement  of  parties 
it  may  operate  as  an  alternative  writ  of  mandamus,  which 
is  in  such  cases  dispensed  with.1  So  soon  as  there  is  a  pro- 
ceeding in  court,  which  occurs  as  soon  as  the  court  grants 
a  motion  to  show  cause  or  an  alternative  writ,  all  affidavits 
or  other  papers  filed  therein  subsequent  thereto  must  be 
entitled  of  the  cause  or  they  will  not  be  considered.3 

§  248.  Sufficiency  of  the  jurat  to  the  petition  for  a 
mandamus. —  The  sufficiency  of  the  jurat  to  the  application 
for  a  mandamus  will  depend  generally  upon  the  statutory 
rules  as  to  jurats.  Where  an  application  was  verified  on  the 
information  and  belief  of  the  relator,  such  verification  was 
not  considered  to  be  sufficient,  since  the  facts  in  the  case  were 
of  such  a  nature  that  they  were,  or  should  have  been,  in  the 
knowledge  of  the  relator,  and  under  the  circumstances  the 
trial  court  was  justified  in  refusing  the  writ,  there  having 
been  no  appearance  for  the  respondent.4  On  the  other 
hand,  it  was  considered  to  be  sufficient  that  the  form  of  the 
jurat  to  the  petition  be  the  same  as  that  portion  of  an  ordinary 
affidavit  in  a  personal  action.5  The  English  practice  was 
to  support  the  petition  or  motion  by  the  affidavits  of  par- 
ties who  were  cognizant  of  the  facts,  in  which  cases  it  was 
proper  to  require  them  to  swear  absolutely  as  to  the  truth 
of  the  facts  they  stated.  Where,  however,  a  statute  re- 
quires, or  custom  authorizes,  a  petition,  stating  all  the  facts 
showing  the  right  on  the  part  of  the  relator,  and  the  duty 
and  the  delinquency  on  the  part  of  the  respondent,  sworn 
to  by  the  relator,  it  is  proper  that  in  the  jurat  the  relator 
should  swear  positively  as  to  the  facts  within  his  knowl- 
edge, and  that  the  other  allegations  are  true  according  to 
his  best  knowledge  and  belief.     The  courts  generally  seem 

1  Post,  §  264.  4  State  v.  School  Districts,  8  Neb. 

2  Post,  §  262.  98.      See,    also,    State    v.    Lincoln 

3  Grantham,  In  re,  4  D.  &  L.  427 ;    (Mayor),  4  Neb.  260. 

King  v.  Pierson,  Andrews,  310,  n.  «  State  v.  Wright,  10  Nev.  167. 


§§  249,  250.]      PLEADINGS  AND  PRACTICE.  315 

to  be  satisfied  with  an  affidavit  which  is  as  positive  as  it  is 
within  Jie  power  of  the  relator  to  make  it.1 

§  249.  Action  of  the  court  on  the  petition  for  a  man- 
damus.—  The  application  for  the  writ  of  mandamus  is  usu- 
ally heard  by  the  court  ex  parte,2  though  the  court  may 
order  that  the  parties  against  whom  the  writ  is  desired  be 
notified  in  order  that  they  may  appear  and  resist  the  allow- 
ance of  the  writ,  if  they  so  desire.8  The  petition  should 
be  addressed  to  the  court  before  whom  it  is  laid.4  Since  the 
object  is  to  obtain  a  peremptory  writ  of  mandamus  as  the 
result  of  the  proceedings,  the  petition  or  motion  should 
ask  for  it,  though  it  is  for  the  court  to  say  whether  it  will 
grant  an  order  to  show  cause  why  the  writ  should  not  issue, 
or  an  alternative  writ,  or  a  peremptory  writ,  or  will  dismiss 
the  proceedings.5 

§  250.  When  the  court  will  grant  the  alternative  writ 
or  motion  to  show  cause. —  When  the  petition  is  heard  by 
the  court  ex  parte,  if  a  prima  facie  case  calling  for  the  ex- 
ercise of  the  extraordinary  jurisdiction  of  the  court  by  man- 
damus is  shown,6  or  even  if  it  is  not  clear  that  the  petitioner 
is  not  entitled  to  the  relief  asked,  or  even  if  the  court  is  in 
doubt  as  to  whether  a  writ  lies  in  such  a  case,7  a  rule  to 
show  cause  why  the  writ  should  not  issue,  or  an  alternative 
writ,  will  be  granted,  so  that  the  matter  may  be  fully  con- 
sidered and  determined  when  all  interests  are  represented 
before  the  court.8     It  is  discretionary  with  the  court  as  to 

1  Taylor,  Ex  parte,  14  How.  3 ;  W.  Va.  595.     A  prima  facie  case 

Secombe,   Ex    parte,   19    How.   9;  must  be  presented.     State  v.  Hel- 

State  v.  Cincinnati  (City),  19  Ohio,  raer,  10  Neb.  25 ;  Com.  v.  Allegheny 

178;    People  v.   Pearson,   2  Scam.  Co.  (Com'rs),  37  Pa.  St  277;  Loy, 

189;  Drew  v.  McLin,  16  Fla.  17.  Ex  parte,  59  Ind.  235. 

2 Fisher  v.  Charleston  (City),  17  "Chance  v.  Temple,  1  Iowa,  179; 

W.  Va  595 ;  State  v.  Lean,  9  Wis.  State  v.  Lean,  9  Wis.  279 :  Fisher  v. 

279 ;  Swan  v.  Gray,  44  Miss.  393.  Charleston  (City),  supra;   State  v. 

8  Chance  v.  Temple,  1  Iowa,  179.  Johnson  Co.  (Board  Equal.),  10  Iowa, 

*  Chance  v.  Temple,  supra.  157. 

6  Schend  v.  St.  George's,  etc.  Soc,  8  State  v.  Lean,  9  Wis.  279 ;  State 

49  Wis.  237 ;  Babcock  v.  Goodrich,  v.  Johnson  Co.  (Board  Equal.),  10 

47  CaL  488.  Iowa,  157. 

6  Fisher  v.   Charleston  (City),  17 


31G  PLEADINGS   AND   PKACTICE.  [§  251. 

which  order  it  will  grant,  and  it  may  grant  an  alternative 
writ  in  the  first  instance  if  it  deems  it  more  conducive  to 
public  justice,  and  to  prevent  delays.1  The  English  practice 
is  to  first  grant  the  order  to  show  cause,  at  a  designated 
time,  why  the  writ  should  not  issue  ;2  and  in  America  it  has 
been  issued  to  judges,  apparently  out  of  deference,  since 
their  office  carries  a  strong  presumption  in  favor  of  the 
propriety  of  their  action ;  but  such  an  order  is  often  re- 
garded as  useless  and  as  merely  occasioning  delay,3  and  in 
America  the  preferable  practice  seems  to  be  to  dispense 
with  the  rule  to  show  cause  and  to  issue  the  alternative 
writ  in  the  first  instance.4 

§  251.  When  a  court  will  issue  a  peremptory  writ  with- 
out any  notice  to  the  respondent. —  When  the  court  grants 
an  order  to  show  cause  why  a  writ  of  mandamus  should 
not  issue,  or  issues  the  alternative  writ,  it  always  fixes  the 
time  whereat  the  respondent  is  required  to  make  a  return 
showing  his  obedience  to  the  writ  or  his  reasons  for  not 
obeying,  so  that  he  may  have  sufficient  time  wTherein  to 
prepare  his  defense.5  Justice  requires  that  one  should  have 
notice  and  an  opportunity  to  be  heard  before  a  peremptory 
mandamus  is  awarded  against  him.6  It  must  be  an  extreme 
case,  or  one  that  from  its  nature  admits  of  no  excuse,  which 
will  induce  a  court  to  issue  a  peremptory  writ  of  mandamus 
without  any  notice  to  the  relators.7  Where  a  jailer  held 
the  body  of  a  deceased  prisoner  for  some  money  due  him 
and  for  articles  supplied,  a  peremptory  mandamus  was  is- 
sued in  the  first  instance,  without  any  notice  having  been 
given  to  the  jailer,  to  deliver  the  body  to  his  executors  for 
the  purpose  of  burial.     The  court  evidently  considered  that 

i  Life,  etc.  Co.  v.  Adams,  9  Pet.  Wis.    631 ;    Fisher    v.    Charleston 

571.  (City),  17  W.  Va.  595. 

2  Fisher  v.  Charleston  (City),  17  5  Lutterloh  v.  Cumberland  Co. 
W.  Va  628.  (ConVrs),  65  N.  C.  403. 

3  Fisher  v.  Charleston  (City),  su-  « Armi jo  v.  Territory,  1  N.Mex.  580. 
pra;  State  v.  Delafield  (Sup'rs),  64  '  Chance  v.  Temple,  1  Iowa,  179 ; 
Wis.  218.  Attala  Co.  (Bd.  Police)  v.  Grant,  9 

4  State  v.   Joint  School  Dist.,  65  Sm.  &  Mar.  77. 


§  252.]  PLEADINGS    AND    PRACTICE.  317 

sanitary  laws,  as  well  as  decency,  required  that  the  remains 
should  be  interred.  The  judge  stated  that  it  was  not  nec- 
essary to  await  a  return,  and  that  the  respondent,  if  he  had 
a  defense,  could  show  cause  why  an  attachment  should  not 
issue.1  A  peremptory  mandamus  was  granted  without  no- 
tice to  compel  a  clerk  to  record  a  deed,  who  had  refused  to 
do  so  on  the  ground  that  the  acknowledgment  did  not  jus- 
tify its  being  recorded,  after  the  court  had  satisfied  itself 
by  an  inspection  of  the  validity  of  the  acknowledgment, 
upon  the  suggestion  that  another  deed  might  obtain  a  prior 
record,  if  a  delay  should  arise  from  awarding  an  alternative 
writ.2  Where  a  peremptory  writ  was  granted  without  any 
notice  to  the  respondents,  and  there  were  certain  matters  of 
fact  to  be  determined  by  the  respondents  before  they  took 
any  action,  the  proceedings  were  reversed  in  the  appellate 
court  because  the  respondents  held  received  no  notice.3 

§  252.  Action  of  the  court  on  the  hearing  of  the  motion 
to  show  cause. — In  case  the  court  issues  an  order  to  the  par- 
ties complained  of  to  show  cause  on  a  designated  day  why 
the  writ  described  should  not  be  issued,  the  question  will 
be  discussed  on  the  hearing  upon  the  original  papers  on 
which  the  order  was  obtained,  and  upon  the  opposing  affi- 
davits, in  case  the  parties  complained  of  (the  respondents) 
show  cause  against  the  application.4     If  the  cause  shown 
presents  an  issue  of  fact,  the  court  should  not  try  such  issue 
on  affidavits,  but  should  award  an  alternative  writ,  that 
after  a  return  the  issue  may  be  tried  regularly  as  provided 
by  statute  or  by  rules;5  if,  however,  there  is  no  dispute 
about  the  facts,  and  the  application  is  well  founded  in  law, 
and  the  respondent  was  heard  in  opposition  to  the  applica- 
tion, the  peremptory  mandamus  may  be  granted  at  once.6 

i  Q.  v.  Fox,  2  A.  &  E.  (N.  S.)  246.  5  Schend  v.  St  George's  Soc,  49 

2Goodell,  Ex  parte,  14  John.  325.  Wis.    237;    Fisher    v.    Charleston 

3  State  v.  Scott  Co.  (Com'rs),  42  (City),  17  W.  Va.  595 ;  State  v.  Dela- 
Minn.  284.  field  (Bd.  Sup'rs),  64  Wis.  218. 

4  Commercial  B'k  v.  Canal  Com'rs,  6  Schend  v.  St  George's  Soc,  49 
10  Wend.  25 :  Q.  v.  Registrar,  21  Q.  Wis.  237 ;  People  v.  Barton  (Ass'rs), 
B.  D.  131;  People  v.  La  Grange  44  Barb.  148;  Knox  Co.  (Bd. 
(Town  Bd.),  2  Mich.  187.  Com'rs)     v.    Aspinwall,    24    How. 


318  PLEADINGS    AND   PRACTICE.  [§  253. 

Other  courts  will  only  take  such  action  in  remarkably  clear 
cases,1  or  when  the  furtherance  of  justice  requires  prompt 
and  immediate  action.2  Where  the  notice  of  the  applica- 
tion for  the  writ,  directed  to  the  judge  of  a  court,  was  served 
on  the  opposite  party  and  on  the  judge,  and  the  law  was 
plain,  the  peremptory  writ  was  issued  in  the  first  instance.3 
If  the  respondent  fails  to  show  cause  under  the  rule,  or 
makes  an  insufficient  answer,  the  custom  in  West  Virginia 
is  to  enlarge  the  rule,  compel  an  answer,  or  issue  an  alter- 
native or  a  peremptory  writ.4  If  it  appears  upon  examina- 
tion that  the  petitioner  has  no  merit  in  his  application,  the 
rule  or  writ  will  be  refused,  and  the  proceedings  will  be 
dismissed.5 

§  253.  The  alternative  writ  becomes  the  first  pleading 
in  the  cause. —  When  the  court  orders  an  alternative  writ 
of  mandamus  to  issue,  such  writ  becomes  the  primary 
pleading  in  the  cause.  It  corresponds  to  the  complaint  or 
petition  in  an  ordinary  action  at  law,  and  the  return  of  the 
respondent  is  regarded  as  an  answer  in  a  similar  pro- 
ceeding.6 The  petition  and  affidavits,  on  which  the  writ 
was  obtained,  form  no  part  of  the  record ; 7  nor  can  they 
be  used  to  sustain  or  supplement  the  allegations  contained 
in  the  writ.8 

376;  State   v.   Patterson    (Mayor),  People  v.  Chicago  (Mayor).  51  I1L 

35  N.  J.  L.  196 ;  State  v.   Camden  17 ;    State    v.   Union    Township,  9 

(City  Coun.),  39  N.  J.  L.  620 ;  Lut-  Ohio  St.  599 ;  People  v.  Sullivan  Co. 

terloh  v.  Cumberland  Co.  (Com'rs),  (Sup'rs),   56    N.   Y.    249 :    State  v. 

65  N.  C.  403 ;  State  v.  Hudson  Co.  Sheridan,  43  N.  J.  L.  82 ;  Wheeler 

(Bd.  Freeholders),  35  N.  J.  L.  269.  v.  Northern  C.  I.  Co.,  10  Colo.  582 ; 

1  A  ttala  Co.  (Bd.  Police)  v.  Grant,  Crans  v.  Francis,  24  Kans.  750 ;  Long 

9  S.  &  M.  77.  v.  State,  17  Neb.  60 ;  State  v.  Sup'rg 

2White  River  Bank,  In  re,  23  Vt.  (Bd.).  64  Wis.  218 ;  State  v.  Burns- 

478.  ville  T.  Co.,  97  Ind.  416 ;  Lyman  v. 

3  People  v.  Pearson,  1  Scam.  458.  Martin,  2  Utah,  136 ;  HamWeton  v. 

4  Fisher  v.  Charleston  (City),  17  Dexter  (Town),  89  Mo.  188. 

W.  Va.  595.  7  state  v.  Sheridan,  43  N.  J.  L  82 ; 

5  People  v.  Thistlewood,  103  111.  Hardee  v.  Gibbs,  50  Miss.  802 ;  Peo- 
139-  pie  v.  Sullivan  Co.  (Suprs),  56  N.  Y. 

6  Silver  v.  People,  45  111.  224 ;  Peo-  249. 

pie  v.  Hamilton  Co.,  3  Neb.  244;  8  state  v.  Sheridan,  supra;  Fisher 
Johnson    v.    Smith,   64    Ind.   275 ;    v.  Charleston  (City),  17  W.  Va.  595 ; 


§§  254,  255.]  PLEADINGS    AND    PRACTICE.  319 

§  254.  Particularity  of  statement  required  in  the  al- 
ternative writ. —  At  one  time  the  greatest  particularity 
and  completeness  of  statement  was  required  in  pleadings  in 
a  mandamus  proceeding;  but  the  extraordinary  strictness 
of  statement  formerly  required  under  the  common  law  is 
not  considered  to  be  applicable  to  this  country.1  It  has 
been  held  that  the  alternative  writ  should  anticipate  and 
answer  every  possible  objection  which  it  may  be  expected 
will  be  urged  against  the  claim,2  but  such  certainty  as  is  re- 
quired in  a  declaration  in  a  common-law  suit  is  generally 
held  to  be  sufficient.3  The  statements  may  be  informal,  but 
whatever  is  essential  to  good  pleading  in  an  ordinary  action 
must  be  contained  in  substance  therein.4  Certainty  to  a 
common  intent  is  now  considered  sufficient  for  the  petition 
or  writ,  and  answer,  stated  in  such  manner  that  the  ordi- 
nary mind,  disregarding  technicality  in  pleading,  may  easily 
apprehend  it.5  It  has  even  been  held  that  the  right  of  the 
petitioner  and  the  duty  of  the  respondent  may  be  stated 
in  general  terms.6 

§  255.  Subject  continued. —  The  alternative  writ  must 
aver  all  the  facts  necessary  to  give  the  petitioner  the  right 
which  he  claims,7  and  to  justify  the  order  sought.8  The 
petitioner  must  show  clearly  his  interest  in  the  matter 
which  he  presents  as  the  ground  of  his  application.9  "What- 
ever is  required  to  be  done  by  him  as  a  condition  precedent 
to  the  right  demanded  must  be  shown  affirmatively  to  have 
been  performed  by  him,10  and  the  manner  of  such  perform- 

Fisher    v.   Charleston   (Mayor),   17        4  State  v.  Sheridan,  43  N.  J.  L.  82. 
W.  Va.628;  McKenzie  v.  Ruth,  22        5  Central,   etc.  Co.   v.   Com.,   114 

Ohio  St  371.  Pa.  St  592. 

1  State  v.  Lusitanian  P.  Soc,  15        6  Kidder  v.  Morse,  26  Vt  74. 
La.  An.  73.  7  Withers  v.  State,  36  Ala  252. 

2  Houston,  etc.  R  R  Co.  v.  Ran-        8  McKenzie  v.  Ruth,  22  Ohio  St 
dolph,  24  Tex.  317 ;  Arberry  v.  Beav-  371 ;  State  v.  Stearns,  11  Neb.  104 
ers,  6  Tex.  457;  Hoxie  v.  Somerset        9  Fleming.  Ex  parte.  2  Wall.  759; 
Co.  (Com'rs),  25  Me.  333 ;  Harkins  State  v.  Davis  Co.  (Judge),  2  Iowa, 
v.  Sencerbox,  2  Minn.  344.  280. 

3  Fisher  v.  Charleston  (Mayor),  17       "  People  v.  Hayt  66  N.  Y.  606. 
W.  Va.  628. 


320  PLEADINGS    AND    PEACTICE.  [§  255. 

ance  must  be  stated.1  The  facts  must  also  be  set  forth 
which  clearly  impose  on  the  respondent  the  duty  which  it 
is  sought  to  compel  him  to  perform,2  and  show  that  the 
act  sought  is  not  in  excess  of  his  legal  obligation,3  and  that 
he  still  has  the  power  to  do  it.4  The  allegations  of  fact 
must  be  so  positive  that  an  indictment  for  perjury  may  be 
sustained  on  them  if  they  are  not  correct.5  The  writ  should 
show  that  the  relator  has  a  legal  right  to  have  the  act  done 
which  is  sought,  that  it  is  the  plain  duty  of  the  respondent 
to  perform  such  act  without  any  discretion  as  to  doing  or 
declining,  that  the  mandamus  will  be  efficient  as  a  remedy, 
and  that  the  relator  has  no  other  plain,  speedy  and  ade- 
quate remedy.6  Every  material  fact  on  which  the  relator 
relies  must  be  set  forth  distinctly,7  unreservedly,  fully  and 
clearly.8  All  the  facts,  including  the  particulars  thereof, 
which  give  the  right  to  the  relator  and  impose  the  duty  on 
the  respondent,  and  show  the  default  of  the  latter,  must  be 
set  forth  in  an  issuable  form,  so  that  they  may  be  admitted 
or  traversed.9  A  deficiency  in  the  allegations  made  by  the 
relator  cannot  be  supplied  by  matter  appearing  in  the  re- 
turn.10 The  relator  must  show  a  good  case  on  the  face  of 
the  petition.11  A  party,  who  admits  that  he  is  not  entitled 
to  the  sum  of  money  specified  in  the  contract,  but  claims 

1  People  v.  Glann.  70  111.  232.  People    v.   Westchester,    15    Barb. 

2  Kemerer  v.  State,  7  Neb.  130.  607 ;  Hambleton  v.  Dexter  (Town), 

3  People  v.  Dutchess,  etc.  R.  R.,  58  89  Mo.  188 ;  Lavelle  v.  Soucy,  96 
N.  Y.  152 ;  Reg.  v.  Tithe  Com'rs,  19  111.  467 ;  People  v.  Glann,  70  111. 
L.  J.  Q.  B.  177 ;  People  v.  Baker,  35  232 ;  Commercial  Bank  v.  Canal 
Barb.  105.  Com'rs,   10    Wend.   25;    People  v. 

<  People  v.  Hayt,  66  N.  Y.  606.  Davis,  93  111.  133 ;  State  v.  Everett, 

5  Chance  v.  Temple,  1  Iowa,  179;  52  Mo.  89;    Chance   v.   Temple,    1 

Fisher  v.  Charleston  (City),  17  W.  Iowa,  179 ;  Caual  (Bd.  Trustees)  v. 

Va.  595.  People,  12   111.  248 ;  State  v.  Gov- 

e  Daniels  v.  Miller,  8  Colo.  542.  ernor,  39  Mo.  388 ;  People  v.  Ran- 

?  Lavelle  v.  Soucy,  96  111.  467.  som,   2   N.  Y.    490 ;    Houston,   etc. 

8  Houston,  etc.  R.  R  v.  Randolph,  R  R.  v.  Randolph,  24  Tex.  317. 

24  Tex.  317;  Hardee  v.   Gibbs,  50  i°Q.  v.  Hopkins,  1  Ad.  &  E.  (N.  S.) 

Miss.   802;    State    Board    Educ.    v.  161. 

West  Point,  50  Miss.  638.  ll  Swanbeck  v.  People,  15  Colo.  64. 

9  State  v.  Sheridan,  43  N.  J.  L.  82 ; 


§  256.]  PLEADINGS    AND    PRACTICE.  321 

under  a  quantum  meruit,  cannot  seek  payment  by  means  of 
a  mandamus,  since  the  writ  only  lies  for  a  specific  legal 
right,  and  a  party  cannot  thereby  recover  damages  and 
have  a  writ  of  inquiry,  as  upon  a  quantum  meruit}  The 
petitioner  is  not  required  to  contest  his  rights  against  third 
persons,  and  his  allegations  and  the  investigation  should  be 
limited  to  such  facts  as  are  necessary  to  determine  the 
rights  of  the  parties  properly  before  the  court.2 

§  256.  Illustrations  of  the  particularity  required  in 
the  writ. —  Where  a  mandamus  was  asked  to  compel  a 
sheriff  to  make  a  deed  for  property  sold  by  him  on  execu- 
tion, it  was  considered  necessary  to  allege  the  facts  which 
showed  that  the  sale  was  in  accordance  with  the  law.3  In 
pleading  a  bond  it  is  not  sufficient  to  say  it  was  a  good 
bond  under  the  law,  but  it  must  be  set  out,  or  there  must 
be  distinct  averments  showing  that  it  complies  with  the 
law.4  An  alternative  writ  of  mandamus  to  compel  the  is- 
suance of  a  dram-shop  license  must  state  the  facts  showing 
compliance  with  the  municipal  ordinance  and  the  statute.5 
When  a  mandamus  is  sought  to  compel  the  state  treasurer 
to  pay  a  warrant  of  the  auditor,  the  allegation  that  there 
was  sufficient  money  in  the  treasury  applicable  thereto 
when  it  was  drawn  is  not  sufficient,  but  an  allegation  is  nec- 
essary that  there  was  sufficient  money  there  to  pay  it  when 
it  was  presented.6  When  an  application  is  made  to  restore 
a  justice  of  the  county  court  who  has  been  removed  from 
office  by  that  court,  the  alternative  writ  must  show  that 
the  relator  was  a  justice  and  has  the  constitutional  and 
legal  right  to  exercise  all  the  duties  of  the  office.7  When, 
however,  a  legal  liability  has  been  judicially  ascertained,  it 
is  sufficient  to  so  state,  and  it  is  not  necessary  to  allege  the 
circumstances  out  of  which  it  grew.8     When  the  law  does 

i  Tucker  v.  Iredell,  1  Jones,  451.  6  Huff  v.  Kimball,  39  Ind.  411. 

2  State  v.  Wright,  10  Nev.  167.  7  Spencer  Co.  (Just.)  v.  Harcourt, 

»  Winters  v.  Burford,  6  Cold.  328.  4  B.  Mon.  499. 

*  People  v.  Crotty  (Village),  93 I1L  8  School  Dist  v.  Lauderbaugh,  80 

180.  Mo.  190. 
6  State  v.  Hudson,  13  Mo.  Ap.  6L 
21 


322  TLEADINGS    AND    PRACTICE.  [§  257. 

not  allow  a  warrant  to  be  drawn,  unless  there  exists  an  un- 
exhausted fund  specifically  appropriated  to  meet  it,  the  writ 
must  allege  that  there  is  money  on  hand,  not  otherwise 
appropriated  by  law,  out  of  which  it  can  be  paid.1  An  ap~ 
plication  to  compel  the  commissioners  of  highways  to  take 
proper  steps  to  open  a  highway  must  so  describe  the  road 
that  it  may  be  found  by  the  description.2  When  a  party 
has  an  option  to  do  one  of  two  things,  a  mandamus  to  com- 
pel him  to  do  one  is  defective,  unless  it  shows  the  impossi- 
bility of  exercising  the  option.3  A  petition  or  an  alterna- 
tive writ  of  ma?idamtis,  calling  on  the  respondents  to  pay 
to  the  relator  the  amount  due  to  him  under  a,  certain  con- 
tract, without  specifying  such  amount,  is  defective.  The 
reason  assigned  is  that  the  court  cannot  make  a  proper 
order.4 

§  257.  The  alternative  writ  must  show  that  the  proper 
demand  of  performance  was  made,  or  the  facts  render- 
ing a  demand  unnecessary. —  Since  this  writ  never  issues 
against  a  party  unless  he  is  in  default,  it  must  clearly  ap- 
pear by  the  allegations  of  the  petition  or  writ  that  a  de- 
mand has  been  made  on  him  to  fulfill  his  duty  and  perform 
the  act  desired.5     But  it  is  not  always  necessary  to  allege 

1  Redding  v.  Bell,  4  Cal.  333.  ent's  return  might  enable  the  rela- 

2  People  v.  Davis,  93  111.  138.  tor  to  dismiss  the  writ  and  begin 
3 Reg.    v.    South   East.   R.   R.,  25    anew,  but  the  law  should  not  re- 

Eng.  L.  &  E.  13 ;  4  H.  L.  C.  471.  quire    such    unnecessary  proeeed- 

4  McCoy  v.  Harnett  Co.  (Just),  5  ings.     Where  the  writ  alleged  that 

Jones,  265.     If  this  decision  means  the  respondent  had  collected  about 

that    the    exact    amount    claimed  $25,000,  and  he  returned  that  he  did 

must  in  all  cases  be  stated,  it  would  not  know  how  much  money  he  had 

in  many  cases  defeat  the  object  of  on  hand,  the  court  stated  that  it 

the  writ.     When   a  mandamus  is  was  his  business  to  know,  and  that 

sought  to  compel  a  tax  collector  to  he  must  inform  himself  at  his  peril, 

pay  over  the  proceeds  of  a  certain  A  peremptory  writ  was  issued  to 

tax,  it  is  generally  impossible  to  as-  pay  over  the  actual  balance  in  his 

certain  the  sum  collected,  and  the  hands.     State  v.  Dougherty,  45  Mo. 

claim  for  an  amount  in  excess  of  294. 

the  collections  will  defeat  the  writ.        5  Chance  v.  Temple,  1  Iowa,  179 ; 

The  disclosure  of  the  proper  sum  People  v.  Hyde  Park,  117  111.  462; 

upon  the  incoming  of  the  respond-  Hardee  v.  Gibbs,  50  Miss.  802. 


§  258.]  TLEADJNGS  AND  PKACTICE.  323 

or  prove  a  personal  demand.  When  the  law  imposes  a  posi- 
tive and  well-defined  duty  of  a  public  nature  upon  public 
officers  affecting  public  interests,  the  law  stands  for  a  con- 
tinuous demand ; l  but  all  the  facts  must  be  set  forth  which 
are  necessary  to  show  such  dereliction  or  omission  of  duty.2 
Where  a  statute  peremptorily  required  the  erection  of  a 
house  of  correction,  a  failure  to  take  any  action  in  the  mat- 
ter for  twelve  years  dispensed  with  the  necessity  of  a  de. 
mand.3  So  acts  and  declarations,  if  shown  in  the  petition 
or  alternative  writ,  amounting  to  a  refusal,  and  showing 
that  a  refusal  would  have  followed  a  demand,  dispense  with 
necessity  of  a  demand,  since  the  law  does  not  exact  the 
performance  of  vain  things.4  An  averment,  that  the  coun- 
cils of  a  city  have  refused  to  make  any  provision  for  the 
payment  of  interest  on  its  bonds,  dispenses  with  the  neces- 
sity of  alleging  a  demand  to  levy  a  tax  in  proceedings  by 
mandamus  to  compel  the  levying  and  collecting  of  a  tax 
for  that  purpose.5  When  an  averment  of  a  demand  is  nec- 
essary, the  lack  of  such  averment  is  fatal,  even  though  the 
trial  court  may  find  such  a  request  and  refusal.6  Where  a 
demand  was  accompanied  with  an  improper  requirement, 
the  latter,  it  was  held,  might  be  rejected  as  surplusage.7  A 
demand  to  levy  a  tax,  which  did  not  show  the  amount  of 
the  liability,  was  held  to  be  insufficient.8  When  a  demand 
is  necessary,  the  fact  that  it  was  made  must  be  alleged 
with  precision.9 

§  258.  A  refusal  by  the  respondent  to  act  must  be  al- 
leged in  the  alternative  writ,  or  the  facts  equivalent  to  a 
refusal. —  It  must  appear  by  the  allegations  of  the  petition 

iLee  Co.  v.  State,  36  Ark.  276.  fi  Douglas  v.  Chatham  (Town),  41 

2  State  v.   Gracey,  11  Nev.   223;  Conn.  211. 

Ohio  v.  Moore,  39  Ohio  St  486.  ?Q.  v.  St.  Margaret  (Select  Ves- 

» Com.    v.    Hampden    (Just),    2  try),  8  A.  &  E.  889. 

Pick.  414.  8  Tallapcosa    (Com'rs    Court)    v. 

4  Com.  v.  Allegheny  (Com'rs),  37  Tarver,  21  Ala.  661. 

Pa.  St  277.  9  Ingerman  v.  State  (Ind,  May  1, 

5  Com.  v.  Pittsburgh  (Sel.  Com.),     1891),  27  N.  E.  Rep.  499. 
34  Pa.  St.  496. 


324  PLEADINGS    AND    PRACTICE.  [§§  259,  200. 

or  alternative  writ,  that  the  party  complained  of  refused 
or  failed  to  comply  with  the  demand  to  fulfill  his  duty.1 
It  is  not  necessary  to  allege  a  direct  refusal  to  comply  in 
case  such  facts  are  alleged  as  are  equivalent  thereto.  Of 
course  where  a  demand  may  be  dispensed  with,  so  may  a 
refusal,  but  the  facts  must  be  stated  which  render  such  de- 
mand unnecessary.2  Where  a  vestry  adjourned  from  time 
to  time  without  complying  with  the  demand,  as  the  pre- 
vious vestry  had  done,  and  they  did  not  satisfactorily  deny 
the  charge  that  they  purposely  so  adjourned  with  the  ob- 
ject of  not  complying,  the  court  considered  their  action  to 
be  equivalent  to  a  refusal.3 

§  259.  The  alternative  writ  must  show  that  the  relator 
has  no  legal  remedy  except  the  writ  of  mandamus.—  The 
petition  or  alternative  writ  must  show  that  the  petitioner  has 
no  legal  remedy  except  the  writ  of  mandamus.  An  aver- 
ment that  the  petitioner  cannot  have  adequate  relief  with- 
out the  aid  of  mandamus  is  sufficient.4  Though  it  is  cus- 
tomary to  make  such  an  allegation,5  yet  it  suffices  that  the 
facts  alleged  show  that  the  relator  has  no  other  adequate 
legal  remedy.6 

§  260.  Particularity  required  in  the  mandatory  clause 
of  the  alternative  writ. —  After  the  facts  have  been  stated, 
a  mandatory  clause  must  be  added  to  the  petition  or  alterna- 
tive writ,  specifying  the  duty  required  of  the  party  against 
whom  complaint  is  made,  and  praying  an  order  of  the  court 
requiring  him  to  discharge  such  duty.     This  mandatory 

i  Hardee  v.  Gibbs,  50  Miss.  802.  5  Lutterlob    v.   Cumberland    Co. 

2  Ante,  §  257.  (Com'rs).  65  N.  C.  403 ;  School  Insp. 

3Q.  v.  St.  Margaret  (Sel.  Vestry),  v.  State,  20  111.   525;  Rex  v.  Over- 

8  A.  &  E.  889.     The  objection  that  seers  Shipton  Mallet,  5  Mod.  R.  420. 

no  refusal  was  alleged  was  disre-  It  has  been  held  not  to  be  proper  to 

garded,  because  it  was  not  taken  make  the  allegation.  State  v.  Jones, 

at  the  outset  of  the  argument  on  1  Ired.  129. 

showing  cause  against  the  issuance  6  State  v.  Goll,  32  N.  J.   L.   285 ; 

of  the  writ    Q.  v.  Gamble,  3  Per.  People  v.  Hilliard,  29  111.  413 ;  State 

&  Dav.  122,  note  d.  v.  Jones,  1  Ired.  129 ;  State  v.  Gov- 

*  Com.  v.  Pittsburgh,  34  Pa,  St  ernor,  39  Mo.  388. 
496. 


§  260.]  PLEADINGS    AND   PRACTICE.  325 

clause  should,  like  the  body  of  the  petition  or  alternative 
writ,  state  the  acts  demanded  from  the  respondent  in  terms 
so  specific  as  to  show  the  precise  acts  required,  and  with 
great  certainty  should  call  his  attention  thereto.1  The 
greatest  care  is  required  in  framing  this  mandatory  clause, 
since  the  peremptory  writ  must  strictly  conform  to  the 
mandatory  clause  of  the  alternative  writ,  and  be  enforced 
in  its  terms  or  not  at  all.2  The  range  of  action  required  of 
the  respondent  cannot  be  left  to  indiscriminate  outside  as- 
certainment;3 nor  can  he  be  required  to  look  dehors  the 
writ  to  ascertain  his  duty,  and  therefore  a  mandate  to  him 
to  assess  property  '•  according  to  law  "  is  erroneous.4  If 
the  mandatory  part  of  the  writ  is  larger  than  is  warranted 
by  the  recitals  of  the  writ  or  by  the  statute,5  or  if  it  de- 
mands two  or  more  acts,  one  of  which  cannot  be  legally 
required,6  the  writ  is  bad  on  demurrer  or  may  be  quashed. 
So  a  mandamus  to  city  officers,  and  to  those  persons  after- 
wards elected  such,  to  fill  the  vacancies  in  certain  offices, 
is  bad,  because  parties  not  yet  elected  to  office  owe  no  du- 
ties to  others  as  such  officers.7  An  alternative  writ  of  man- 
damus calling  upon  the  public  authorities  to  pay  a  judgment, 
issue  bonds,  or  levy  a  tax  to  pay  the  same,  was  quashed, 
because  it  failed  to  state  the  precise  duty  required.  An 
order  in  the  alternative  was  riot  considered  to  conform  to 
the  rule  that  the  mandatory  clause  must  clearly  and  ex- 
pressly state  the  precise  thiug  desired.8  For  the  same  rea- 
son a  mandatory  clause  requiring  the  trustees  of  a  town  to 
pay  certain  warrants,  or  levy  a  tax  for  their  payment,  was 
considered  to  be  erroneous.9    Such  decisions  seem  to  be  ad- 

i  People  v.   Brooks,   57  111.   142;  »King  v.  St  Paneras,  1  N.  &  P. 

State  v.  Mobile,  etc.  R  R,  59  Ala.  507. 

321.  estate  v.  Grubb,  85  Ind.  213. 

2  King  v.  St.  Paneras,  1  N.  &  P.  '  United  States  v.  Elizabeth  (City), 
507.  42  Fed.  R  45. 

3  Cross  v.  West  Va.  etc.  R.  R,  34  estate    v.   Milwaukee   (City),   22 
W.  Va.  742.  Wis.  397. 

4  Hartshorn  v.  Ellsworth  (Asses.),  p  State  v.  Pacific  (Town  Trustees), 
60  Me.  276.  61  Mo.  155. 


326  PLEADINGS    AND    PKACTICE.  [§  2G1. 

liering  to  a  general  rule  at  the  expense  of  justice.  A  third 
party  seldom  knows  the  exact  condition  of  a  public  treasury, 
and  his  peremptory  writ  is  not  granted  unless  it  is  neces- 
sary to  obtain  the  object  desired.  A  writ,  commanding 
the  payment  of  his  claim,  will  be  finally  overruled  if  it  ap- 
pears there  is  no  money  in  the  treasury.  So  a  writ  requir- 
ing the  levy  of  a  tax  will  be  refused  if  it  is  unnecessary  by 
reason  of  the  supply  of  money  in  the  treasury.  Possibly 
after  the  facts  are  developed  by  the  return  or  on  the  trial, 
an  amendment  may  be  allowed  to  the  writ,  but  the  relator 
should  not  be  required  to  rely  on  an  amendment,  and  all 
courts  do  not  allow  material  amendments  to  be  made.  It 
would  seem  proper  in  such  cases  to  permit  the  mandatory 
clause  to  require  the  payment  of  the  claim  from  moneys  in 
the  treasury,  or,  in  case  of  a  deficiency  of  such  money,  to 
levy  a  tax  to  pay  it.1  Where  several  acts  are  to  be  done, 
the  mandatory  clause  may  be  general  in  its  terms  when 
otherwise  great  prolixity  would  be  required.2 

§  261.  Documents  of  importance  in  the  case  should  ac- 
company a  petition  for  a  mandamus.—  To  the  petition  for 
a  mandamus  should  be  annexed  all  documents  of  impor- 
tance in  the  matters  involved.3  All  record  evidence,  as  the 
proceedings  of  court,  should  be  brought  before  the  court  as 
exhibits  in  the  shape  of  certified  copies,  or  authenticated  in 
some  way,4  rather  than  by  bare  recitals  in  the  affidavit  or 
petition.5  To  an  application  for  a  mandamus  to  an  officer 
of  a  parish  to  deliver  up  all  the  books  in  his  possession  be- 
longing to  a  parish,  because  of  his  conviction  of  a  crime,  a 
certified  copy  of  the  record  of  such  conviction  should  be  an- 
nexed, that  the  court  may  see  whether  the  conviction  was 

i  Ralls  Co.  Court  v.  United  States.  People  v.   Pearson,   2  Scam.    189 ; 

10")TJ.  S.  733.  Secombe,    Ex   parte,    19    How.    9; 

•-'Q.  v.  Southampton  (Com'rs  of  Poultney  v.  La  Fayette  (City),  12 

Port),  L.  R  4  Eng.  &  Irish  Ap.  449.  Pet.  472 ;  Kleiber  v.  McManus,  6(3 

3  Babcoek  v.   Goodrich,   47    Cal.  Tex.  48. 

488_  s  Hewitt  v.  Judge  of  Probate,  67 

*  Postmaster  Gen.  v.  Trigg,  1 1  Pet     Mich.  1. 
173 ;  Taylor,  Ex  parte,  14  How.  3 ; 


§  262.1  PLEADINGS    AND    PRACTICE.  327 

proper  and  before  parties  competent  to  decide.1  Where, 
however,  it  was  sought  to  compel  the  steward  of  the  lord 
of  a  manor  to  enroll  a  deed,  it  was  not  considered  necessary 
to  annex  a  copy  of  the  deed,  when  the  contents  of  the  deed 
had  been  stated  in  the  affidavit.2  In  proceedings  to  compel 
the  restoration  of  parties,  claimed  to  have  been  wrongfully 
expelled  from  membership  in  private  corporations,  it  is  usual 
to  annex  to  the  application  or  to  the  return  copies  of  the 
charters  and  by-laws  of  such  corporations.3  When  a  writ 
of  mandamus  is  applied  for  to  compel  a  judge  to  sign  a  bill 
of  exceptions,  such  bill  should  accompany  the  application.4 
§  262.  The  alternative  writ  should  conform  to  the  pe- 
tition.—  The  various  allegations  mentioned  must  be  found 
in  the  alternative  writ ;  but  if  a  petition  is  presented  in 
order  to  obtain  the  writ,  they  must  also  appear  in  the  pe- 
tition. The  court  grants  the  alternative  writ  upon  the 
showing  made  in  the  petition,  and  the  writ  should  set  forth 
all  the  matters  constituting  such  showing.5  The  material 
parts  of  the  petition  are  the  facts  which  are  sworn  to,  and 
the  court  issues  the  alternative  writ  of  mandamus  for  what 
the  party,  by  the  showing  of  his  affidavit,  is  entitled  to,  re- 
gardless of  the  prayer  contained  therein.  So  far  as  the 
relief  is  concerned,  the  court  will  in  its  order  mould  the  al- 
ternative writ.6  A  variance  in  substance  in  the  alternative 
writ  from  the  order  of  the  court,  changing  the  character 
of  the  act  to  be  done,  or  omitting  any  material  fact  con- 
tained in  the  petition,  is  fatal  to  the  proceedings,  and  will 
cause  the  writ  to  be  quashed.7    It  often  occurs  that  by  stat- 

i  Rex  v.  Simms,  4  Dowl.  294  W.  Va.  628 :  People  v.  Norstrand, 

2  Crosby  v.  Fortescue,  5  Dowl.  273.  46  N.   Y.    375 ;    King  v.  Leicester 

3 Evans  v.  Philadelphia  Club,  50  (Just),  4B.&C.  891 ;  Hartshorn  v. 

Pa   St.    107;     Med.     etc.    Soc.     v.  Ellsworth  (Assessors),  60  Me.  276; 

Weatherly,    75  Ala.  248 ;  Com.   v.  State  v.  Beloit  (Sup'rs),  20  Wis.  79 ; 

Pike  B.  Soc,  8  Watts  &  S.  247.  King  v.  St  Pancras  (Ch.  Trustees), 

♦See  §190.  3  A.  &  E.  535. 

» State  v.  State  Board  of  Health,  •  Hawkins  v.  More,  3  Ark.  345 ; 

103  Mo.  22.  State  v.  Casey  (N.  Dak.,  June  16, 

s  Fisher  v.  Charleston  (Mayor).  17  1891),  49  N.  W.  Rep.  164 


32S  PLEADINGS    AND    PRACTICE.  ['§  203. 

ute,1  custom,2  order  of  court,3  or  consent  of  parties,  the  issue 
of  the  alternative  writ  may  be  waived,4  and  the  petition  or 
affidavit  treated  as  such.  In  such  cases  the  petition  or  af- 
davit  becomes  the  alternative  writ,  and  is  subject  to  the 
rules  of  pleading  which  apply  to  alternative  writs  of  man- 
damus. 

§  2G3.  Mode  of  setting  out  the  facts  in  the  alternative 
writ. —  The  alternative  writ  is  merely  an  order  of  court. 
After  setting  out  the  allegations  which  are  contained  in  the 
petition  or  affidavit,  it  orders  the  parties  complained  of  to 
perform  the  acts  desired,  or  to  show  the  court  at  a  time 
designated  in  the  order  why  they  have  not  done  so.  The 
allegations  of  the  petition  are  generally  alleged  in  the  alter- 
native writ  by  way  of  recital,  as:  whereas  it  is  recited  that 
A.  has,  etc.,5  or  A.  of  full  age,  being  duly  sworn,  now  here 
causes  the  court  to  be  informed,  etc.6  Great  care  must  be 
exercised  in  preparing  the  alternative  writ.  In  England 
the  counsel  for  the  petitioner  prepares  it,  and  here  the 
counsel  have  been  required  to  draft  it  and  submit  it  to  the 
court  before  it  was  issued.7  The  practice  is  not  uniform. 
In  one  state  the  writ  contains  only  the  order,  but  a  copy  of 
the  petition  is  served  with  it.s  When  there  is  no  agree- 
ment to  dispense  with  the  alternative  writ,9  the  writer  be- 
lieves the  last  mentioned  practice  to  be  commendable.  He 
would,  however,  recommend,  as  is  done  in  some  courts,  that 
the  writ  set  out  that  on  a  certain  date  a  certain  paper  was 
filed  in  that  court,  setting  out  the  petition  verbatim,  in- 
cluding the  jurat,  and  adding  that  the  court,  after  due  con- 

i  People    v.   Weber,  86  I1L   283 ;  ter  v.  State,  82  Ind.  382 ;  McCraiy 

People  v.  Davis,  93  111.  133.  v.  Beaudry,  67  Cal.  120. 

2  Texas  M.  R.  R.  v.  Locke,  63  Tex.  s  Fisher  v.  Charleston  (Mayor),  17 

623.  W.  Va.  628. 

A  Schend  v.  St.  George's  Soc,  49  6  Chance  v.  Temple,  1  Iowa,  179. 

Wis.    237;    People    v.   La    Grange  7Johnes  v.   Auditor  of  State,  4 

(Town  Board),  2  Mich.  187.  Ohio  St.  493. 

*  Davis  v.   Carter,   18  Tex.   400 ;  » McCoy  v.  Harnett  Co.  (Just),  4 

People  v.  Scates,  3  Scam.  351 ;  Pfis-  Jonas,  180. 

*Ante,  §262. 


§§  264,  265.]  PLEADINGS    AND    PEACTICE.  329 

sideration,  ordered  the  respondents  to  do  a  certain  act, 
here  setting  out  the  mandatory  clause  of  the  petition,  or 
that  they  on  a  day  designated  show  cause  why  they  have 
not  done  so.1 

§  264.  The  manner  in  which  mandamus  proceedings 
are  entitled. —  Since  the  mandamus  proceeding  is  an  order 
from  the  sovereign  authority  commanding  a  certain  party 
to  do  a  certain  act  of  a  public  nature  which  the  aggrieved 
party  cannot  enforce  by  the  ordinary  process  of  law,  and 
wherein  the  sovereign  authority  interposes  to  prevent  a 
failure  of  justice,  the  proceeding  was  considered  to  be  a 
prerogative  writ,  and  to  be  really  a  proceeding  prosecuted 
by  such  sovereign  power.  It  was  accordingly  held,  that  the 
proceedings  should  be  entitled  in  the  name  of  the  sovereign 
power,  but  the  name  of  the  party  instituting  the  proceed- 
ings was  added  as  the  relator.  The  parties  against  whom 
the  writ  was  sought  were  known  as  the  respondents. 
Though  the  practice  is  almost  universal  of  entitling  the 
proceedings  in  the  name  of  the  sovereign  power,2  yet  the 
writ  is  now  shorn  of  its  prerogative  features  and  is  in  sub- 
stance a  civil  remedy,  and  though  the  name  of  the  sover- 
eign power  is  still  used,  yet  such  use  is  merely  nominal  and 
there  is  no  longer  any  reason  therefor.3  So  soon  as  the 
proceedings  are  instituted,  which  is  as  soon  as  the  court 
issues  any  order  therein,  all  papers  and  pleadings  therein 
must  be  properly  entitled  by  the  name  of  the  plaintiff  and 
respondents.  Whether  the  petition  and  affidavits  upon 
which  the  first  application  is  made  to  the  court  should  be 
entitled  has  already  been  considered.4 

§  265.  When  there  is  an  informality  in  the  alternative 
writ  an  alias  may  issue.— Where  there  has  been  an  infor- 

1  See  §  319.  3  State  v.  Lewis,  76  Mo.  370 ;  State 

2  Chumasero  v.  Potts,  2  Mont.  242 ;  v.  Madison  Co.  (Com'rs;,  92  Ind. 
Territory  v.  Potts,  3  Mont.  364;  133;  State  v.  Jennings,  56  Wis.  113: 
Chance  v.  Temple,  1  Iowa,  179 ;  Run-  Brower  v.  O'Brien,  2  Ind.  423 ;  Run- 
ion  v.  Latimer,  6  S.  C.  126 ;  State  ion  v.  Latimer,  6  S.  C.  126. 

v.  Cole,  33  La.  An.  1356.     For  the        ^  Ante,  §  247. 
exceptions  see  ante,  §  228. 


330  PLEADINGS    AND    PRACTICE.  [§  2GG. 

mality  in  the  alternative  writ  as  issued,  such  as  the  omis- 
sion of  the  clause  to  show  cause  why  the  writ  should  not 
be  obeyed,  or  that  it  was  made  returnable  at  an  earlier 
period  than  was  allowed  by  the  rules  of  court,  an  alias  writ 
properly  corrected  has  been  granted  at  once.1 

§  266.  Proceedings  when  no  return  is  made  to  the  al- 
ternative writ. —  If  the  party  complained  of  fails  to  make 
a  return  to  the  alternative  writ,  and  simply  ignores  it,  the 
court  may  issue  an  attachment  against  him  to  compel  him 
to  make  a  return; 2  but  in  earlier  times  the  attachment  was 
not  granted  without  a  peremptory  rule  to  return  the  writ, 
and  then  the  attachment  went  for  the  contempt  in  not 
obeying  such  rule.3  In  a  case  wherein  it  appeared  that  the 
alternative  writ  did  not  contain  the  clause  to  show  cause 
why  the  writ  was  not  obeyed,  the  court  discharged  the  rule 
to  show  cause  why  an  attachment  should  not  issue  for  not 
making  a  return  to  an  alias  mandamus,  and  granted  a 
jpluries  writ  containing  the  omitted  clause,  and  gave  the 
respondent  time  to  make  his  return.4  The  court  may  at  its 
discretion,  unless  there  is  some  statute  to  the  contrary,5  issue 
a  peremptory  writ  of  mandamus  upon  a  default  on  the  part 
of  the  respondents  in  making  a  return  to  the  alternative 
writ,B  and  the  facts  stated  in  the  alternative  writ  may  be 
taken  to  be  true.7  The  peremptory  writ  has  been  granted 
where  the  return  consisted  merely  of  an  argument  against 
the  authority  of  the  court  to  issue  the  writ.8  The  courts 
are,  however,  reluctant  to  issue  the  writ  on  a  default,9  and 
will  refuse  it  in  a  case  involving  public  interests,  upon 

i  London  v.  Swallow,  2  Keb.  76 ;  5  People  v.   Central  P.  R.  R,  62 

King    v.    St.   Andrew    (Gov'rs    of  Cal.  506.                • 

Poor),   7  A.   &  E.   281;  King  and  *>  People  v.  Pearson,  3  Scam.  270; 

Owen,  Skin.  669.  People    v.   Ulster    Co.    (Judges),    1 

2  King  v.  Esham,  2  Barn.  265 ;  John.  64 ;  State  v.  Jones,  1  Ired. 
United  States  v.  Lee  Co.  (Sup'rs),  2  129 ;  Fisher  v.  Charleston  (City),  17 
Biss.  77  ;  Rex  v.  Rye  (Mayor),  Burr.  W.  Va.  595. 

798;  State  v.  Baird,  11  Wis.  260.  1  State  v.  Gandy,  12  Neb.  232. 

3  Coventry  (Mayor),  Case  of,  2  8  People  v.  Pearson,  2  Scam.  189. 
Salk.  429.  9  State  v.  Baird,  11  Wis.  260. 

*  King  and  Owen,  Skin.  669. 


§§  267,  26S.]  PLEADINGS    AND    PRACTICE.  331 

the  failure  of  a  public  officer  to  interpose  matters  of  de- 
fense, when  substantial  proof  of  the  relator's  right  is  want- 


ing.1 


§  267.  A  return  of  obedience  to  the  alternative  writ.— 

After  the  alternative  writ  is  issued  the  relator  can  obey  the 
writ,  and  can  comply  with  the  order  therein  contained  and 
make  a  return  stating  such  obedience,  or  he  may  move  to 
quash  the  writ  or  may  demur  to  it,  or  make  a  return,  de- 
nying the  facts  stated  therein  or  setting  up  new  matter 
constituting  a  defense.2  If  the  respondent  elects  to  obey 
the  writ,  his  return  should  show  clearly  his  compliance  by 
following  the  mandatory  clause  of  the  writ  and  stating  his 
performance  of  the  duty  as  by  the  writ  commanded.3  The 
respondent  may,  on  the  other  hand,  return  obedience  to  a 
part  of  the  alternative  writ,  and  give  his  reasons  for  refus- 
ing to  obey  the  rest  of  it.4  It  may  be  that  the  respondent 
returns  obedience  to  the  writ,  but  the  relator  asserts  that 
such  return  is  not  true  or  is  a  mere  evasion.  In  such  cases 
the  relator  is  allowed  by  plea  to  traverse  a  return  of  un- 
conditional compliance  with  the  writ.5 

§  268.  The  early  practice  in  mandamus  proeeedings.- 
Before  proceeding  to  consider  the  present  practice  in  such 
matters  it  will  be  well  to  call  attention  to  the  old  prac- 
tice. The  practice  in  mandamus  proceedings  has  changed 
very  much  since  the  adoption  of  the  statute  of  9  Anne, 
chapter  20,  though  at  first  the  English  courts  claimed  that 
it  made  but  little  difference,  save  that  it  conferred  the  right 
to  traverse  the  allegations  of  the  return,  and,  as  a  conse- 
quence, gave  a  trial  of  the  disputed  matters  of  fact ;  but  they 
and  the  American  courts  have  more  and  more  assimilated 
the  proceedings  in  the  case  of  a  mandamus  to  those  of  an 
ordinary  action  at  law,  and  whereas  any  error  was  fatal 
and  any  decision  of  a  legal  question  was  final,  now   the 

lArbeny  v.  Beavers,  6  Tex.  457.        "King  v.  Staffordshire  (Just.).  6 

2  Swan    v.   Grav,    44  Miss.    393 ;     A.  &  E.  84. 

Newman,  Ex  parte,  81  U.  S.  152.  5Q.  v.  Pirehill  North  (Just.).  13 

3  State  v.  Williams,  69  Ala.  311.        Q.  B.  D.  696 ;  14  Q.  B.  D.  13 ;  Q.  v. 

King,  20  Q.  B.  D.  430. 


332  PLEADINGS    AND    PRACTICE.  [§  26S. 

courts  allow  amendments  to  be  made,  and  traverses  to  be 
filed  after  the  overruling  of  demurrers  and  motions  to  quash, 
very  much  as  in  any  suit  at  law.  We  will  first  state  the 
old  practice,  which  has  been  modified  from  time  to  time, 
till  its  harsh  rules  have  generally  been  abrogated.  If  the 
respondent  objected  to  the  legal  sufficiency  of  the  writ,  he 
moved  to  quash  it  or  filed  a  return,  alleging  that  under  the 
law  he  was  not  required  to  do  the  act  desired  by  the  relator, 
whereupon  a  concilium  was  asked  for  and  granted,  under 
which  the  question  was  argued  and  disposed  of  as  though 
it  were  a  demurrer.1  If  the  motion  to  quash  the  writ  was 
overruled  the  writ  was  made  peremptory;2  and  the  same 
rule  was  enforced,  when  on  a  concilium  the  writ  was  found 
to  be  legally  sufficient.  On  the  other  hand,  when  the  writ 
was  adjudged  to  be  insufficient  on  a  concilium  or  a  motion 
to  quash,  the  proceedings  were  dismissed.  If  a  return  con- 
troverting the  facts  and  stating  reasons  why  the  respond- 
ent had  not  obeyed  the  writ  was  filed,  the  relator  might 
object  thereto  by  a  motion  to  quash,  or  he  might  pray  for 
and  obtain  a  concilium-,  whereupon  the  question  was  argued 
and  decided  as  on  a  demurrer.3  The  concilium  was  an  inven- 
tion of  the  courts,  because  the  statute  of  9  Anne,  chapter  20, 
which  undertook  to  regulate  mandamus  proceedings,  failed 
to  provide  for  a  demurrer  to  the  pleadings  above  mentioned. 
There  seemed  to  be  a  preference  for  a  concilium,  unless  the 
return  was  frivolous,  contemptuous  or  manifestly  bad  on 
its  face,  when  the  motion  to  quash  was  used,  though  it  could 
be  used  on  all  occasions  if  the  party  so.  chose.4  If  the  re- 
turn was  adjudged  to  be  insufficient,  the  peremptory  writ 
of  mandamus  was  granted  at  once.5     If,  however,  the  re- 

1  King  v.  St.  Panoras,  1  N.  &  P.  London  (Mayor),  3  B.  &  Ad.  205 ; 
507 ;  Chance  v.  Temple,  1  Iowa,  179.  Pattison,   J.,  in   Q.  v.   Eastern   Co. 

2  King  v.  Tucker,  3  B.  &  C.  544.  R.  R,  10  A.  &  E.  531,  558. 

3  Q.  v.  St.  Saviour  (Church-war-  *  New  Haven,  etc.  R.  R  v.  State, 
dens),  7  A.  &  E.  925 ;  Pattison,  J.,  44  Conn.  376 ;  Silverthorne  v.  War- 
in  King  v.  Oundle  (Lord  of),  1   A.  ren  R  R.  33  N.  J.  L.  173. 

&E.  283,  299;  King  v.  Ouze  Bank  5Bullers  Nisi  Prius,  197,  198: 
Com'rs,  3  Ad.  &  R  544 ;  King  v.     King  v.  Oundle  (Lord  of),  1  Ad.  & 


§  268.]  PLEADINGS    AND    PRACTICE.  "-">;>> 

lator  had  questioned  the  sufficiency  of  the  return  by  means 
of  a  concilium,  he  was  not  allowed,  after  the  decision  was 
against  him  in  such  a  proceeding,  to  traverse  the  facts  stated 
in  the  return,  for  he  thereby  admitted  that  upon  its  face 
the  return  was  a  sufficient  answer,  and  a  judgment  was  ren- 
dered for  the  respondent.1  The  allegations  of  fact  contained 
in  the  return  could  not  be  traversed,  and  for  this  reason, 
and  because  the  proceeding  was  intended  to  be  a  speedy 
remedy,  the  courts  required  each  party  to  state  his  claims 
fully  in  his  pleadings,  and  allowed  no  amendments  to  be 
made  to  the  pleadings  except  of  the  most  formal  kind,2  and 
in  overruling  any  action  by  either  party  gave  final  judg- 
ment in  favor  of  the  other  party.  If  the  relator  admitted 
the  return  to  be  good  in  point  of  law,  but  claimed  that  the 
statements  contained  therein  were  not  true,  his  remedy 
was  to  bring  an  action  against  the  respondents  for  making 
a  false  return.  Such  action  was  required  to  be  brought  in 
the  same  court,  namely,  in  the  king's  bench.  It  would  not 
suffice  to  bring  such  a  suit  in  the  common  pleas  court.3  But 
such  action  could  not  be  brought  till  judgment  had  been 
entered  on  the  return,  since,  until  it  was  adjudged  that  the 
return  was  good  in  law,  it  did  not  appear  that  the  relator 
had  suffered  any  damages  by  such  return.4  If  the  relator 
succeeded  in  his  action  for  a  false  return,  the  court  then 
ordered  the  issue  of  the  peremptory  writ  of  mandarin/* 
under  his  original  proceedings.5  When  the  respondent  was 
a  corporation,  the  action  for  a  false  return,  being  an  action 
for  damages  for  a  wrongful  act,  could  be  brought  against 
the  whole  corporation,  or  against  any  particular  member 

El.  283;  Q.  v.  St.  Andrews  (Gov.),  &  Ad.   255:  People  v.   Finger,   24 

10  A.  &  E.  736 ;  R.  v.  March,  2  Burr.  Barb.  341. 

999 ;  R.  v.  Dublin  (Dean),  8  Mod.  27 :  2  §  293. 

Rex  v.  Norwich  (Dean),  Stra.  159 ;  3  Puller's  Nisi  Prius,  197, 198. 

Q.  v.Poole  (Mayor),  1Q.  B.616;  Rex  *  Enfield    v-   Hills>   2    Lev-   3365 

v.  Maiden  (Corp.),  2  Salk.  431 ;  1  L.  State  v.  Ryan,  2  Mo.  Ap.  303. 

Raym.  481 ;  3  Stephen's  Nisi  Prius,  5  Buckley  v.  Palmer,  2  Salk.  430 ; 

2328.  Swan  v.  Gray,  44  Miss.  393. 
1  King  v.  London  (Mayor),  3  B. 


334  PLEADINGS    AND    PRACTICE.  [§  269. 

of  it.1  The  act  of  9  Anne,  chapter  20,  allowed  the  return 
to  be  traversed  in  cases  of  contests  about  public  offices,  and 
has  since  been  extended  to  every  mandamus  proceeding. 
In  America,  either  b}^  statute  or  by  the  rulings  of  the  courts, 
the  returns  were  allowed  to  be  traversed,  and  it  is  believed 
that  now  in  all  of  the  states  such  practice  is  admissible. 
As  a  consequence  the  action  for  a  false  return  has  become 
obsolete,  and  need  be  no  further  considered.  As  already 
stated,  the  practice  in  a  mandamus  proceeding  has  changed 
very  much  since  the  statute  of  9  Anne,  chapter  20,  whereby 
a  traverse  was  allowed  to  the  return  in  many  cases,  and 
pleadings  found  to  be  defective  are  allowed  to  be  amended. 
We  will  proceed  to  consider  the  pleadings  and  practice  in 
such  cases  as  now  generally  adopted. 

§  269.  When  a  motion  lies  to  quash  the  alternative 
writ. —  A  motion  to  quash  the  alternative  writ  of  man- 
damus is  proper,  when  it  does  not  disclose  a  case  coming 
within  the  legitimate  scope  of  a  mandamus,  or  when  it  is 
informal  or  defective  by  omission  of  necessary  parties  or  of 
some  material  fact.2  If  the  facts  set  forth  in  the  writ  do 
not  show  a  legal  title  in  the  relator,  such  writ  may  be 
quashed.3  A  motion  to  quash  the  alternative  writ  is  equiv- 
alent to  a  demurrer,4  and  it  is  a  matter  of  little  moment, 
whether  the  objections  to  the  writ  be  urged  by  demurrer 
or  by  a  motion  to  quash.5  Where  the  questions  involved 
were  very  important,  it  has  been  considered  not  proper  to 
decide  them  on  a  motion  to  quash  the  writ,  which  was  re- 
garded as  an  informal  proceeding,  but  that  they  should  be 
presented  by  plea  or  demurrer.6     Most  of  the  courts  will 

1  Reg.  v.  Chapman,  6  Mod.  152.  451 ;  Fisher  v.  Charleston  (City),  17 
When  this  decision  was  made  in    W.  Va.  595. 

1707,   the  writ  was  only  brought  3  Levy  v.  Inglish,  4  Ark.  65. 

against  municipal  corporations.  4  Cram  v.  Francis,  24  Kans.  750 ; 

2  Anon.,  2  Salk.  525 ;  Commercial  Rice  v.  State,  95  Ind.  33 ;  State  v. 
Bank  v.  Canal  Com'rs,    10  Wend.  Sheridan,  43  N.  J.  L.  82. 

25;  State  v.  Sheridan,  43  N.  J.  L.        5  State  v.  Everett,  52  Mo.  89. 
82 ;  Harwood  v.  Marshall,  10  Md.        *  State  v.  Penn.  R  R,  41  N.  J.  L. 

250. 


§  269.]  PLEADINGS  AND  PRACTICE.  335 

hardly  regard  the  latter  objection  as  tenable,  since  the 
questions  may  be  as  fully  considered  on  a  motion  to  quash 
as  on  a  demurrer.  When  an  alternative  writ  had  been 
granted  after  argument  and  upon  notice  and  after  deposi- 
tions had  been  taken,  the  court  properly  refused  to  enter- 
tain a  motion  to  quash  it  on  the  ground  that  it  had  been 
improvidently  granted.1  A  motion  to  quash  admits  as  true 
only  such  allegations  of  the  alternative  writ  as  are  well 
pleaded,  and  does  not  admit  matters  of  law,  legal  conclusions 
or  statutory  construction.2  Mere  formal  defects  may  be 
reached  by  a  motion  to  quash.3  Such  objections  must  always 
be  taken  in  limine,  and  will  not  be  considered  after  a  return 
has  been  made  to  the  writ.4  Where  it  was  objected,  after  a 
return  had  been  made,  that  the  three  relators  represented 
the  grievances  of  their  three  respective  towns,  and  therefore 
could  not  join  in  one  writ,  the  court  considered  the  objec- 
tion to  be  merely  formal,  and  that,  if  available  at  all,  it 
should  have  been  urged  by  a  motion  to  quash.5  When  the 
writ  is  defective  in  substance,  it  is  subject  to  objection  at 
any  period  in  the  case  prior  to  the  granting  of  the  peremp- 
tory writ,  and  may  be  quashed  therefor.6  The  respondent 
has  been  allowed  to  impeach  the  validity  of  the  alternative 
writ  upon  a  demurrer  to  a  traverse  to  a  return,7  and  even 
on  an  attachment  for  contempt.8  An  alternative  writ  was 
quashed  for  gross  faults  after  the  time  for  making  a  return 

i  State  v.  Penn.  R.  R,  41  N.  J.  L.  (Sup'rs),  15  Barb.  607 ;  Commercial 

250.  Bank  v.  Canal  Com'rs.  10  Wend. 

2  State  v.  County  Court,  33  W.  Va.  25 ;  Trustees  of  Canal  (Bd.)  v.  Peo- 
589 ;  Dillon  v.  Barnard,  21  Wall.  430 ;  pie,  12  111.  248 ;  People  v.  Fulton 
United  States  v.  Ames,  99  U.  S.  35.  (Sup'rs),  14  Barb.  52 ;  King  v.  Mar- 

3  Trustees  of  Canal  (Bd.)  v.  Peo-  gate  Pier  Co.,  3  B.  &  Aid.  2'20 ;  Peo- 
ple, 12  111.  248.  pie  v.   Batcbellor,   53    N.   Y.    128; 

*  Fuller  v.  Plainfield  A.  School,  6  Haskins  v.    Scott    Co.    (Board    of 

Conn.  532 ;  People  v.  Sullivan  Co.  Sup'rs),   51    Miss.   406 ;    People    v. 

(Sup'rs),  56  N.  Y.  249;  Commercial  Davis,    93    111.    133;    Hawkins    v. 

Bank  v.  Canal  Com'rs,  10  Wend.  25.  Moore,  3  Ark.  345 ;  Knight  v.  Ferris, 

» People  v.  Ontario  Co.  (Sup'rs),  6  Houst.  283. 

85  N.  Y.  323.  "  Clarke     v.    Leicestershire,    etc. 

6  Fisher  v.  Charleston  (City),   17  Canal,  6  Ad.  &  E.  (N.  S.)  898. 

W.  Va.  595 ;  People  v.  Westchester  8  Q.  v.  Ledyard,  1  Q.  B.  616. 


33(5  PLEADINGS   AND    PRACTICE.  [§§270-272. 

had  expired  and  without  requiring  first  a  return  from  the 
respondent.1  The  motion  to  quash,  like  a  demurrer,  should 
be  made  before  a  return  is  made  to  the  writ.2 

§270.  Demurrer  to  the  alternative  writ. —  Instead  of 
moving  to  quash  the  alternative  writ,  the  respondent  may 
demur  to  it.  As  already  mentioned,  the  statute  of  9  Anne, 
chapter  20,  did  not  authorize  a  demurrer  to  the  alternative 
writ,  and  the  English  courts  would  not  allow  such  a  de- 
murrer to  be  filed ;  but  they  granted,  upon  application,  a 
concilium,  which  is  equivalent  thereto.  In  America  the 
usual  practice  is  to  allow  the  respondent  to  demur  to  the 
alternative  writ  without  resorting  to  the  circumlocution  of 
a  concilium.3  It  is  allowable,  however,  to  put  in  a  return, 
which  raises  law  points,  and  to  that  extent  is  practically  a 
demurrer.4 

§  271.  Amendment  to  alternative  writ.— In  case  the 
alternative  writ  is  found  to  be  defective  on  a  motion  to 
quash  or  on  demurrer,  the  relator  will  be  allowed  to  amend 
it  if  he  so  desires.5 

§  272.  Return  after  the  overruling  of  the  demurrer  to, 
or  motion  to  quash,  the  alternative  writ. —  The  custom 
now  is,  if  the  demurrer  to,  or  the  motion  to  quash,  the  al- 
ternative writ  is  overruled,  to  allow  the  respondent  to  put 
in  a  return.6     This  is  not  conceded  to  be  a  matter  of  riffht, 

i  King  v.   Willingford    (Just),  2  111.  456 ;  Wheeler  v.  Northern  C.  I. 

Barn.  132.  Co.,  10  Colo.  583 ;  Brown  v.  Ruse,  69 

2  Poteet  v.  Com'rs,  30  W.  Va.  58.  Tex.  589 ;  People  v.  Salomon,  46  111. 

*  Newman,  Ex  parte,  81  U.  S.  152 ;  333 ;  State  v.  Lafayette  Co.  Court, 

State  v.  Jennings,  56  Wis.  113 ;  Ly-  41  Mo.  545  ;  Morton  v.  Compt.  Gen., 

man  v.  Martin,  2  Utah,  136 ;    State  4  Rich.  (N.  S.)  430 ;  Long  v.  State, 

v.  Sheridan,  43  N.  J.  L.  82;  State  v.  17  Neb.  60;  Wise  v.  Bigger,  79  Va. 

Chicago,   etc.  R.  R,    19  Neb.  476;  269. 

Boone  Co.  (Com'rs)  v.  State,  61  Ind.  5  §  294. 

379 ;  Chance  v.  Temple,  1  Iowa,  179 ;  e State  v.  Jennings,  56  Wis.  113 ; 

State  v.  Lafayette  Co.  Court,  41  Mo.  State  v.  Sheridan,  43  N.  J.  L.  82 ; 

545;  Lee  Co.  v.  State,  36  Ark.  276 ;  Chance  v.    Temple,   1    Iowa,   179; 

Hardee  v.  Gibbs,  50  Miss.  802 ;  Swan  Meyer  v.  Dubuque  (City),  43  Iowa, 

v.  Gray,  44  Miss.  393 ;  Meyer  v.  Du-  592 ;    Lyman    v.   Martin,    2    Utah, 

buque  (City),  43  Iowa,  592.  136 ;  Hardee  v.  Gibbs,  50  Miss.  802 ; 

4  Madison  Co.  Court  v.  People,  58  State  v.  Lean,  9  Wis.  279 ;  State  v. 


§§  273,  274]  PLEADINGS    AND    PRACTICE.  337 

but  is  considered  to  be  proper,  when  justice  requires  that 
the  respondent  should  be  allowed  to  answer.  Sometimes 
the  court  has  required  the  respondent  to  first  submit  to  it 
his  proposed  answer,  or  to  show  the  merits  of  his  defense 
by  an  affidavit,  or  has  received  the  oral  statements  of  his 
counsel  in  lieu  of  an  affidavit.  In  such  cases,  if  the  court 
considered  the  proposed  defenses  to  be  without  merit,  or 
that  they  had  already  been  passed  on  in  the  decision  of  the 
demurrer  or  motion  to  quash,  the  respondent  was  not 
allowed  to  make  a  return  and  the  peremptory  writ  was 
ordered.1 

§  273.  No  prescribed  form  for  a  return,  but  it  must 
contain  the  necessary  allegations. —  As  stated  before,  there 
is  no  prescribed  form  for  a  return,  and  it  may  be  very 
informal,  provided  it  contains  the  necessary  allegations. 
Legal  objections  to  the  writ  have  often  been  urged  by  way 
of  answer,  instead  of  by  demurrer  or  motion  to  quash. 
Loner  legal  arguments  have  sometimes  been  inserted  in  the 
returns,  which  practice,  though  sometimes  reprobated,  has 
not  been  decided  to  be  inadmissible.2 

§  274.  Certainty  and  completeness  of  statement  re- 
quired in  a  return.—  Growing  out  of  the  rule,  that  a  re- 
turn to  a  mandamus  could  not  be  traversed,  there  was  no 
form  of  pleading  known  to  the  law  in  which  greater  cer- 
tainty was  required  than  in  a  return  to  a  writ  of  man- 
damus? Lord  Coke  says  there  are  three  kinds  of  certainty, 
which  may  be  used  in  pleading,  viz.:  1.  Certainty  to  a 
common  intent,  which  is  sufficient  in  a  plea  in  bar.  2.  Cer- 
tainty to  a  certain  intent  in  general,  as  in  counts,  replica- 
tions, etc.,  and  in  indictments.  3.  Certainty  to  a  certain  in- 
Grand  Island,  etc.  R.  R,  27  Neb.  55  Pa.  St  28;  Smyth  v.  Titcomb, 
694#  31  Me.  272 ;  Wright  v.  Johnson,  5 

1  State  v.  Lafayette  Co.  Court,  41  Ark.  687 ;  White  v.  Holt.  20  W.  Va. 
Mo.  545;  State  v.  Bergen  (Free-  792;  Bradstreet,  Ex  parte,  7  Pet. 
holders),  52  N.  J.  L.  313. 


634. 


2  State  v.  Judge  Third  Dist.  Ct,  6  » Prospect  Brewing  Co.'s  Petition, 

La.  An.  484 ;  Morton  v.  Cornpt.  Gen.,  127  Pa  St  523 ;  Harwood  v.  Mar- 

4  Rich.  (N.  S.)  430 ;  Conrow  v.  Schloss,  shall,  10  Md  451. 
22 


338  PLEADINGS   AND   PRACTICE.  [§  274. 

tent  in  every  particular,which  the  law  rejects  as  partaking  of 
too  much  subtlety.1  Certainty  to  a  certain  intent  in  gen- 
eral was  considered  to  be  necessary  in  a  return  to  an  alter- 
native writ  of  mandamus;  2  and  it  has  ever  been  considered 
that  certainty  to  a  certain  intent  in  every  particular  was 
required,3  though  such  certainty  is  by  other  authorities 
only  necessary  in  pleas  of  estoppel,4  and  in  pleas  not  favored 
by  the  law,  s  uch  as  the  plea  of  alien  enemy.5  The  courts 
held  that  the  statute  of  9  Anne,  chapter  20,  made  no  change 
as  to  the  certainty  required  in  the  return,  though  the  reason 
therefor  was  no  longer  the  same.6  But  the  courts  have 
from  time  to  time  relaxed  the  rules  in  this  respect.7  The 
certainty  required  in  a  return  to  an  alternative  writ  of 
mandamus  is  now  defined  to  be  a  statement  which,  upon 
a  fair  and  reasonable  construction,  may  be  called  certain 
without  recurring  to  possible  facts  which  do  not  appear.8 
It  is  elsewhere  said  that  certainty  to  a  common  intent  is 
sufficient,  and  it  is  only  necessary  that  the  ordinary  mind, 
disregarding  technicality  of  pleading,  may  easily  appre- 
hend the  allegations ;  that  it  suffices  if  the  answer,  without 
ambiguity  or  evasion,  responds  to  and  denies  the  assertions 
of  the  writ.9  The  return  should  show  a  legal  reason  for 
not  obeying  the  writ,10  though  it  does  not  answer  the  sup- 

1  Long's  Case,  5  Coke,  121.  Tarver,  21  Ala.  661 ;  Harwood  v. 

2 1  Chit.  PI.  257 ;  King  v.  Lyme  Marshall,  10  Md.  451. 

Regis  (Mayor),  Doug.  144;  Candee,  8King  v.   Lyme    Regis  (Mayor), 

Ex  parte,   48    Ala.   386;    Soc.   for  Doug.   144;   Candee,  Ex  parte,  48 

Visit,  v.  Com.,  52  Pa.  St  125.  Ala.  386 ;  Soc.  for  Visit,  v.  Com.  52 

3  Prospect  Brewing  Co. 's  Petition,  Pa  St.  125;  Com.  v.  Allegheny  Co. 
127  Pa.  St.  523 ;  Harwood  v.  Mar-  (Com'rs),  32  Pa.  St  218.  If  the  re- 
shall,  10  Md.  451 ;  King  v.  Abingdon  turn  is  certain  on  its  face  the  court 
(Mayor),  1  L.  Raym.  559;  12  Mod.  cannot  intend  facts  inconsistent 
401 ;  2  Salk.  431.  with  it  in  order  to  make  it  bad. 

4  King  v.  Lyme  Regis  (Mayor),  King  v.  Lyme  Regis  (Mayor),  supra. 
Doug.  144.  9  Central,  etc.  Co.  v.  Com.,  114  Pa. 

5 1  Chit.  PI.  257.  St.  592. 

6  Lord  Mansfield  in  King  v.  Lyme  i«  King  v.  York  (Archb.),  6  T.  R. 

Regis  (Mayor),   Doug.   144;    Q.    v.  490;  Springfield  v.  Hampden  (Co. 

Pomfret  (Mayor),  10  Mod.  107.  Com'rs),  10  Pick.  59. 

'Tallapoosa    (Com'rs'    Court)    v. 


§  274.]  PLEADINGS   AND   PRACTICE.  33Q 

posal  of  the  writ.1  Trie  return  must  deny  the  allegations 
of  the  writ  or  show  other  facts  sufficient  to  defeat  the 
claim.2  "When  the  writ  is  traversed,  the  facts  must  be 
positively  and  directly  denied,3  and  the  denial  must  be  sin- 
gle and  special  as  to  any  allegations  intended  to  be  contro- 
verted.4 A  general  denial  in  a  return  is  a  nullity  at  com- 
mon law.5  TVhen  any  new  matters  are  relied  upon  as  a 
defense  to  the  writ,  the  return  must  positively,  clearly,  spe- 
cifically and  distinctly  set  out  the  facts  relative  thereto,6  so 
that  the  relator  may  be  able  to  traverse  them,7  and  the 
court  may  be  enabled  to  see  at  once  whether,  if  established, 
they  justify  a  disobedience  of  the  writ.8  Every  plea  must 
have  convenient  certainty  as  to  time,  place  and  persons.9 
The  return  must  be  good,  as  tested  by  the  ordinary  rules 
of  pleading.10  When  the  respondent  in  his  return  sets  forth 
matter  in  abatement  and  also  facts  in  defense  on  the  merits 
and  asks  judgment  on  the  merits,  he  waives  his  plea  in 
abatement.11  Nothing  will  be  intended  in  a  return.12  It  has 
been  held  that  presumption  and  intendment,  so  far  as  they 
so,  must  be  in  favor  of  a  return ; 13  but  if  the  return  does 

i  Rex  v.  Welbeck  (Inhab.),  Stra.  '  People  v.  Ohio  Grove  Town,  51 

1143.  IU.  191. 

2  Commercial  Bank  v.  Canal  8  Com.  v.  Allegheny  (Com'rs),  37 
Com'rs,  10  Wend.  25 ;  Levy  v.  Ing-  Pa.  St  277 ;  Talapoosa  (Com'rs' 
lish,  4  Ark.  65 ;  Canova  v.  State,  18  Court)  v.  Tarver,  21  Ala.  661 ;  State 
Fla.  512 ;  State  v.  State  Bd.  Health,  v.  Jones,  10  Iowa,  65 ;  Polk  Co. 
103  Mo.  22.  Com'rs  v.   Johnson,   21    Fla.   578 ; 

3  Canova  v.  State,  18  Fla.  512 ;  Woodruff  v.  New  York,  etc.  R  R, 
Levy  v.  Inglish,  4  Ark.  65 ;  United  59  Conn.  63. 

States  v.  Bayard,  16  Dist.  Col.  428.        9Gorgas  v.  Blackburn,  14 Ohio, 252. 

4  State  v.  Williams,  96  Mo.  13;  "People  v.  Baker,  35  Barb.  105; 
Sansom  v.  Mercer,  68  Tex.  488.  Silver  v.  People,  45  111.  224 ;  Potts  v. 

&  Sansom  v.  Mercer,  68  Tex.  488.  State,  75  Ind.  336 ;  Chance  v.  Tem- 

It  seems  to  be  allowed  in  Indiana,  pie,  1  Iowa,  179. 

probably  in  conformity  with  plead-  "  Silver  v.  People,  45  111.  224.    Con- 

ings  in  other  suits.     Bowers  v.  Tay-  tra,  State  v.  Jennings,  56  Wis.  113 ; 

lor,  127  Ind.  272.  State  v.  Smith  (Mo.  1891;,  15  S.  W. 

e  Harwood  v.  Marshall.  10  Md  451 ;  Rep.  614. 

Commercial  Bank  v.  Canal  Com'rs,  123  Stephen's   Nisi    Prius,    2326; 

.10  Wend.  25 ;  State  v.  Trammel  (Mo.,  King  v.  Bristol,  1  Show.  288. 

Nov.  9,  1891),  17  S.  W.  Rep.  502.  is  Springfield    v.    Hampden    (Co. 

Com'rs),  10  Pick  59. 


34:0  PLEADINGS    AND   PKACTICE.  [§  275. 

not  answer  the  important  facts  alleged  in  the  writ,  then 
every  intendment  is  made  against  it.1  The  return  is  con- 
strued most  strongly  against  the  pleader.2  Allegations  in 
the  writ,  not  denied,  nor  confessed  and  avoided,  are  taken 
as  true.3  Where  officers  were  called  upon  to  show  cause 
why  they  refused  to  approve  a  bond  given  to  procure  a 
license  to  sell  liquor,  and  in  their  answer  they  declined  to 
state  their  reasons  for  non-action,  it  was  considered  to  be 
fair  to  assume  that  they  acted  arbitrarily  and  without 
reason.4  The  respondent  is  called  upon  to  answer  to  the 
writ,  and  he  must  confine  his  traverses  to  the  statements 
therein  contained.5  He  cannot  answer  the  writ  by  his  legal 
inferences  from  facts  not  stated.  The  court  has  a  right  to 
know  what  the  facts  are,  that  it  may  judge  whether  the 
legal  inferences  are  well  drawn.6 

§  275.  Certainty  required  in  a  return  to  a  writ  to  re- 
store a  party  removed  from  office  or  membership  in  a 
corporation. —  When  to  a  mandamus  proceeding  to  restore 
a  person  removed  from  an  office  or  membership  in  a  cor- 
poration, an  amotion  is  returned,  the  return  must  set  out 
all  the  necessary  facts  precisely  to  show  that  the  person 
was  removed  in  a  legal  and  proper  manner  and  for  a  legal 
cause.  It  is  not  sufficient  to  return  conclusions.  All  the 
necessary  facts  must  be  precisely  returned,  that  the  court 
may  be  able  to  judge  of  the  sufficiency  of  the  proceeding, 
both  as  to  cause  and  form  of  proceeding.7  All  such  facts 
must  be  set  forth  distinctly  and  certainly,  not  argumenta- 
tively,  inferentially  or  evasively.8  The  return  must  show  that 
the  relator  had  notice  to  appear  and  defend  himself,9  and 

1  People  v.  Kilduflf,  15  111.  492;  5  Chance  v.  Temple,  1  Iowa,  179. 
People  v.  Ohio  Grove  Town,  51  111.  6  Com.  v.  Pittsburgh,  34  Pa.  St. 
191.  496. 

2  Gorgas  v.  Blackburn,  14  Ohio,  7  Rex  v.  Liverpool  (Town),  Burr. 
252.  723 ;  Buller's  Nisi  Prius,  201 ;  Com. 

s  State  v.  Lean,  9  Wis.  279 ;  Rex  v.  German  Society,  15  Pa.  St.  251. 

v.  Maiden  (Bailiffs),  2  Salk.  431.  8  Society  v.  Com.,  52  Pa  St.  125. 

4  Amperse  v.  Kalamazoo,  59  Mich.  9  Com.  v.  German  Society,  15  Pa. 

7a  St  251. 


§  275.]  PLEADINGS  AND   PRACTICE.  341 

such  notice  should  have  summoned  him  to  answer  a  par- 
ticular charge.1  The  return  should  show  all  the  proceed- 
ngs  attending  the  amotion.2  If  the  cause  of  the  removal 
is  not  shown  by  the  return,  the  decision  removing  the  re- 
lator will  be  reversed.3  A  return,  that  the  relator  was 
removed  for  a  violation  of  duty  or  for  disobeying  the  orders 
or  laws,  is  too  general ;  it  should  specify  the  charges  or  the 
particular  orders  or  laws  which  were  disobeyed.4  It  must 
be  stated  that  the  offense  was  found  after  a  formal  investi- 
gation, and  must  not  rest  on  inference  alone.5  A  return, 
that  the  relator  was  tried  and  convicted  of  the  charges  ac- 
cording to  the  constitution  and  by-laws,  is  not  sufficient 
without  showing  that  the  association  took  proofs.6  It  must 
also  appear  in  the  return  that  the  proceedings  were  con- 
ducted before  an  assembly  of  the  proper  persons  which  was 
duly  held.7  When  the  meeting  was  not  provided  for  by 
the  charter  or  by-laws  of  the  corporation,  it  should  be  shown 
in  the  return  that  a  special,  or  at  least  a  general,  notice  was 
given  to  each  individual  member.8  Since  the  power  to  re- 
move a  member  exists  prima  facie  as  a  matter  of  law  in 
the  corporation  at  large,  it  is  not  necessary  to  allege  that 
the  corporation  has  such  power,  but  such  power  exists  in  a 
part  of  the  corporation  only  by  charter  or  prescription,  and 
its  existence  must  appear  by  the  return,  in  case  the  amotion 
was  made  by  such  part  of  the  corporation.9  Where  public 
officers  were  removed  from  office,  it  was  held  that  the  record 
of  the  board  which  made  the  removal  must  incorporate 
therein  the  charges  and  the  substance  of  the  evidence,  or 

1  Rex  v.  Liverpool  (Town),  Burr.  6  Society  for  Visitation  v.  Com., 
723.  52  Pa.  St  125. 

2  Com.  v.  Guardians  of  Poor,  6  7  Com.  v.  German  Society,  15  Pa 
S.  &  R  469.  St  251. 

3  State  v.  "Watertown  (Com.  8  Rex  v.  Liverpool  (Town),  Burr. 
Coun.),  9  Wis.  254.  723. 

4  Com.  v.  Guardians  of  Poor,  6  9  King  v.  Lyme  Regis  (Mayor), 
S.  &  R.  469 ;  King  v.  Doncaster  Doug.  144 ;  Buller's  Nisi  Prius,  201 ; 
(Mayor),  2  L.  Raym.  1564.  Rex  v.  Doncaster  (Mayor),  Say.  37. 

5  Schweiger  v.  Society,  13  Phila. 
113. 


342  PLEADINGS    AND   PRACTICE.  [§  276. 

their  action  would  be  overruled.1  The  cause  of  expulsion 
must  be  such  as  the  corporation  can  legally  act  upon  and 
such  as  warrants  its  decision.2  "When,  however,  the  trial 
and  sentence  have  been  regularly  conducted,  the  sentence 
of  the  society  cannot  be  inquired  into  collaterally,  nor  can 
the  merits  of  the  expulsion  be  re-examined.3 

§  276.  A  return  is  sufficient  which  follows  the  sugges- 
tions of  the  writ. —  A  return  which  follows  the  suggestions 
of  the  writ  is  considered  to  be  sufficient.4  To  the  statement 
in  the  writ  that  A.  was  on  Easter-week  chosen  a  church- 
warden, and,  to  the  order  to  swear  him  into  office,  a  return 
that  A.  was  not  elected  a  church-warden  on  Easter-week, 
was  held  to  be  sufficient.5  To  a  mandamus  to  swear  and 
admit  A.  as  a  church-warden,  which  stated  that  he  had  been 
duly  nominated,  elected  and  chosen,  it  sufficed  to  return 
that  he  was  not  duly  elected.6  To  a  mandamus  to  restore 
a  person  to  the  office  of  sexton,  a  return  was  made  that  he 
was  not  duly  elected  and  that  the  respondents  had  the  right 
to  remove  him,  and  had  removed  him.  The  return  was  con- 
sidered to  be  consistent,  because  he  was  in  the  possession 
of  the  office,  whether  duly  elected  or  not,  and  the  respond- 
ents had  actually  removed  him.7  To  a  mandamus  to  restore 
the  plaintiff  as  an  attorney  in  the  corporation,  which  sug- 
gests an  amotion  by  the  respondents  or  by  some  of  them,  a 
return  that  he  was  not  removed  by  them  or  by  any  of  them 
was  considered  to  be  good,  though  he  might  have  been  re- 
moved by  their  predecessors  or  by  other  parties.8  To  a 
mandamus  to  admit  and  swear  A.  into  an  office,  a  return 
that  the  respondents  had  power  to  examine  whether  the 
party  elected  was  a  fit  person  for  the  office,  and  that  they 
had  so  examined  and  decided  that  A.  was  not  a  fit  person, 

1  Geter  v.   Com'rs,    1  Bay,   354 ;  5  Rex  v.  Penrice,  Stra.  1235. 
Singleton  v.  Com'rs,  2  Bay,  105.  «  King  v.  Williams,  8  B.  &  O.  681. 

2  Rex  v.  Liverpool  (Town),  Burr.  ^  Rex  v.  Taunton  (Church-war- 
723 ;  ante,  §  168.  dens),  Cowp.  413. 

3  Soc.  for  Visitation  v.  Com.,  52  8  King  v.  Colchester  (Town),  2 
Pa.  St  125.  Keb.  188. 


4 


Wright  v.  Fawcett,  Burr.  2041. 


§§  277,  278.]  PLEADINGS   AND   PRACTICE.  343 

was  held  to  be  sufficient,  and  they  were  not  required  to 
give  their  reasons  for  their  action.1 

§  277.  Several  defenses  may  be  stated  in  a  return. — 
A  return  need  not  be  single,  but  may  contain  as  many 
pleas  or  defenses  to  all  or  to  parts  of  the  writ  as  the  re- 
spondent may  wish  to  insert,  provided  they  be  consistent 
with  each  other.2  If  any  of  the  pleas  or  defenses  are  incon- 
sistent with  each  other,  the  return  is  defective  and  will  be 
quashed,  since  the  court  knows  not  which  to  believe,3  unless 
some  of  such  defenses  are  bad  in  point  of  law,  in  which 
case  the  court  may  quash  the  bad  defenses  and  send  the 
good  ones  to  trial,  if  the  remaining  defenses  are  not  incon- 
sistent with  each  other.4  If  the  return  consists  of  several 
independent  matters,  consistent  with  each  other,  a  part  of 
which  are  in  law  good  defenses  and  a  part  are  bad  defenses, 
the  court  will  quash  only  the  bad  defenses  and  will  require 
the  prosecutor  to  plead  to  or  traverse  the  others.5 

§  278.  Pendency  of  other  litigation  pleaded  in  abate- 
ment.—  The  pendency  of  civil  suits  involving  the  same 
principles  and  issues  are  not  considered  to  be  a  bar  to  a 
mandamus  proceeding,  since  the  latter  is  a  high  prerogative 
writ  in  the  name  of  the  sovereign.6  The  pendency  of  an- 
other mandamus  proceeding,  wherein  the  parties  and  the 
questions  involved  are  the  same,  may  be  pleaded  in  abate- 
ment. In  such  matters  the  rule  in  civil  actions  is  applica- 
ble7.    The  reason  of  the  rule  is  that  such  subsequent  pro- 

1  King  v.  London  (Mayor),  3  B.  &  5  D.  &  E.  66 ;  Q.  v.  Pomf ret  (Mayor), 
Ad.  255.  10  Mod.  107. 

2  Candee,  Ex  parte,  48  Ala.  386;  *Reg.  v.  Norwich,  2  Salk.  436,  n. 
State  v.  Moss,  35  Mo.  Ap.  441 ;  Reg.  5  King  v.  Cambridge  (Mayor),  2 
v.  Norwich  (Mayor),  2  Salk.  436;  Term,  456 ;  Legg  v.  Annapolis  (City), 
King  v.  London  (Mayor),  3  B.  &  Ad.  42  Md.  203 ;  Selma,  etc.  R  R,  Ex 
255 ;  "Wright  v.  Fawcett,  Burr.  2041.  parte,  46  Ala.  230. 

3  Reg.  v.  Norwich  (Mayor),  2  6  Calaveras  Co.  v.  Brockway,  30 
Salk.  436;  L  Raym.  1244;  Candee,  CaL  325;  State  v.  Moss,  35  Mo.  Ap. 
Ex  parte,  48  Ala.  386 ;  King  v.  Lon-  441. 

don  (Mayor),  9  B.  &  C.  1 ;  King  v.        7  State  v.  Sumter  Co.  Com'rs,  20 
Cambridge  (Mayor),  2  Term,  456 ;    Fla.  859. 
King  v.  York  (Mayor),  5  Term,  66 ; 


o4i  PLEADINGS    AND   PRACTICE.  [§  279. 

ceeding  is  unnecessary,  and  is  therefore  deemed  vexatious 
and  oppressive ;  accordingly,  where  the  second  writ  is  not 
deemed  unnecessary,  the  rule  will  not  be  applied.  A  writ 
to  compel  a  county  treasurer  to  pay  over  the  school  funds 
to  the  proper  officer  was  allowed,  though  the  pendency  of 
a  prior  mandamus  to  the  same  effect  was  pleaded.  The 
first  proceeding  was  tied  up  by  an  appeal,  which  could  not 
be  obtained  here,  since  the  writ  was  applied  for  in  the  high- 
est court,  and  the  public  schools  could  not  be  kept  open 
without  the  money,  so  the  court,  deeming  the  second  writ 
to  be  necessary,  ordered  its  issuance.1  Where  alternative 
writs  had  been  granted,  upon  a  showing  that  there  were 
reasonable  grounds  of  suspicion  that  the  parties  did  not  in- 
tend to  execute  such  writs,  or  that  they  could  not  execute 
them  effectually  and  legally,  the  courts  granted  cross  or 
concurrent  writs  at  the  application  of  the  parties  who  were 
interested  in  the  matter.2  The  plea  has  been  overruled, 
where,  though  both  of  the  proceedings  were  instituted 
practically  for  the  same  object,  the  relators  were  different  — 
in  one  case  the  district  attorney  appearing,  and  in  the 
other  private  parties.3  A  plea  that  a  prior  mandamus  pro- 
ceeding, involving  the  same  facts,  was  quashed,  affords  no 
excuse  nor  justification  for  refusal  to  obey  the  writ,  since 
it  does  not  contain  the  elements  of  a  res  adjudicata  or  of  a 
lis  pendens* 

§  279.  Pleas  puis  darrein  continuance. —  Facts  which 
have  occurred  since  the  issuing  of  the  alternative  writ  of 
mandamus  may  be  pleaded  in  the  return  in  bar  of  the  per- 
emptory writ,5  but  facts  which  occur  after  issue  joined 
should  be  set  up  by  plea  puis  darrein  continuance  or  some 
similar  pleading,  else  they  will  not  be  received  in  evidence.6 

1  State  v.  Dougherty,  45  Mo.  294.  U.  S.  480 ;  State  v.  McCullough,  3 

2  Reg.  v.  Wigan  (Corp.),  Burr.  782 ;  Nev.  202.    The  contrary  was  held  in 
Rex  v.  Haslemere,  Sayer,  106.  State  v.  Cole,  25  Neb.  342,  wherein 

3  Foote  v.  Myers,  60  Miss.  790.  a  demurrer  to  a  supplemental  an- 

4  State  v.  Moss,  35  Mo.  Ap.  441.  swer  was  sustained,   because    the 

5  State  v.  Weeks,  93  Mo.  499.  issues  must  be  determined  as  they 

6  Thompson  v.  United  States,  103  existed  when  the  suit  was  begun  or 


§§  2S0,  281.]  PLEADINGS    AND    PRACTICE.  345 

§  280.  Positiveness  of  allegation  required  in  a  return. 

In  conformity  with  the  requirement  that  the  allegations  in 
the  return  must  be  positive  and  certain,  the  allegations 
therein  contained  cannot  be  stated  to  be  founded  on  infor- 
mation and  belief.1  The  allegations  contained  in  the  writ 
also  cannot  be  denied  on  information  and  belief,2  and  such 
a  denial  is  considered  not  to  put  in  issue  the  facts  stated 
by  the  relator,  but  to  admit  them.3  Where  the  respond- 
ent is  required  to  swear  to  his  plea,  he  should  not  be  con- 
fined to  pleading  matters  which  are  within  his  own  personal 
knowledge,  but  such  statement  as  shows  his  good  faith, 
and  which  is  as  positive  as  is  within  his  power,  should  be 
accepted.4  Though  the  mandatory  part  of  the  writ  may 
be  very  general,  yet  the  return  must  be  very  minute  in 
showing  why  the  respondent  has  not  obeyed  the  order,5  and 
it  should  contain  positive  allegations  of  fact  and  not  mere 
inferences  from  facts.6 

§  281.  Instances  of  returns  which  are  adjudged  to  he 
insufficient. —  Eeturns  have  been  considered  to  be  insuffi- 
cient :  to  a  mandamus  to  admit  one  to  be  clerk  of  the  city, 
a  return  that  he  had  not  taken  the  oath  according  to  the 
statute  before  the  mayor,  when  it  might  have  been  taken 
before  two  justices;7  to  a  mandamus  to  select  two  papers 
of  opposite  politics  in  which  to  publish  the  laws,  a  return 
alleging  that  a  selection  had  been  made,  which  failed  to 
aver  compliance  with  one  provision  of  the  law,  and  averred 
an  equivocal  compliance  with  another  provision ; 8  to  a  man- 
tle issues  were  joined.  Where  a  3  People  v.  Fulton  Co.  (Sup'rs),  53 
mandamus  was  sought  to  compel  Hun,  254;  State  v.  Williams  96 
the  filing  and  approval  of  a  bond,  Mo.  13 ;  State  v.  Trammel  (Mo., 
a  subsequent  matter  occurring  after  Nov.  9,  1891),  17  S.  W.  Rep.*  502. 
the  refusal  to  approve  the  bond  was  4  State  v.  Sumter  Co.  Com'rs,  22 
considered  to  be  foreign  and  irrele-  Fla.  1. 
vant   Candee,  Ex  parte,  48  Ala  386.        5  Reg.  v.  Southampton  (Com'rs),  30 

i  State  v.  Sumter  Co.  Com'rs,  22    L.  J.  Q.  B.  244. 
Y\a.  i.  6  State  v.  Hawes,  43  Ohio  St  16. 

-  People  v.  Brooklyn  (Com.  Coun-        ~  Le  Roy  v.  Slatford,  5  Mod.  316. 
cil),  77  N.  Y.  503.     Contra,  People        8pe0ple  v.  Sullivan  Co.  (Sup'rs), 
v.   Alameda    Co.   (Sup'rs),   45  CaL    56  N.  Y.  249. 
395. 


346  PLEADINGS   AND   PRACTICE.  [§  281. 

damns  to  allow  the  relator  to  act  as  superintendent  of  a 
foreign  corporation,  a  return  alleging  that  relator's  appoint- 
ment was  not  legally  made,  without  showing  the  defects; l 
to  a  mandamus  to  sign  a  bill  of  exceptions,  a  return  that 
the  writ  does  not  state  the  exceptions  in  the  manner  and 
form  in  which  they  were  taken,  without  specifying  the  er- 
rors ; 2  to  a  mandamus  to  restore  A.  as  a  capital  burgess,  a 
return  that  he  wrote  a  scandalous  letter  to  an  alderman 
which  amounted  to  a  libel,  and,  being  charged  therewith  at 
a  court  afterward  holden,  he  assented  to  being  turned  out, 
etc.,  because  if  he  resigned  it  should  have  so  alleged,  and 
that  they  accepted  his  resignation ; 3  to  a  mandamus  to  re- 
store the  relator  to  the  place  of  an  alderman,  a  return  that 
he  was  removed  by  thirty  of  the  common  council  in  the 
council  chamber  assembled,  because  it  did  not  aver  that 
they  were  assembled  as  a  common  council ; 4  to  a  mandamus 
to  a  justice  of  the  peace  to  send  up  the  papers  on  an  appeal, 
a  return  that  his  fees  had  not  been  paid  or  tendered  prior  to 
the  service  of  the  writ,  since  they  may  have  been  paid 
since ; 5  to  a  mandamus  to  a  treasurer  to  pay  a  warrant,  a 
return  that  he  had  no  money  when  served  with  the  writ, 
and  that  he  has  none  now,  because  it  does  not  state  that 
he  had  no  money  when  payment  was  demanded  on  several 
occasions ; 6  to  a  mandamus  to  levy  a  specific  tax  to  pay  a 
certain  judgment,  a  return  that  they  had  levied  a  tax  of 
one  per  cent,  to  pay  the  judgment  and  other  claims,  and 
that  that  tax  was  sufficient  to  pay  them  all,  because  it  did 
not  show  the  whole  act  constituting  the  levy,  and  because 
it  stated  that  the  tax  was  levied  to  pay  other  claims  also ; 7 
to  a  mandamus  to  restore  the  relator  to  the  office  of  a 
burgess,  a  return  that  he  was  duly  elected,  but  was  re- 
moved, and  that  he  had  not  taken  the  sacrament  within  a 
year  prior  to  his  election,  which  was  therefore  null  and 

1  State  v.  McCullough,  3  Nev.  202.        6  People  v.  Harris,  9  Cal.  571. 

2  Reichenbach    v.   Raddach,    121        6  Hendricks  v.  Johnson,  45  Miss. 
Pa  St.  18.  644 

3  Reg.  v.  Lane,  2  L.  Raym.  1304.  ^  Benbow  v.  Iowa  City,  7  Wall.  313. 
*  King  v.  Taylor,  3  Salt  231. 


§  282.]  PLEADINGS   AND    PRACTICE.  347 

void,  because  the  two  defenses  were  inconsistent ; l  to  a  man- 
damus to  swear  into  office  A.  and  B.  dehite  elected  church- 
wardens, a  return  that  they  were  not  duly  elected,  because 
it  did  not  state  that  neither  was  duly  elected,  it  being  their 
duty  to  swear  in  either,  if  he  was  elected ; 2  to  a  mandamus 
to  choose  one  of  two  elected  to  serve  as  mayor,  a  return 
that  thev  were  elected,  but  had  not  taken  the  sacrament, 
which  rendered  the  election  void,  because  there  might  have 
been  a  subsequent  election.3  If  the  writ  set  forth  all  the 
proceedings  and  state  that  by  reason  thereof  A.  was  elected, 
it  is  a  bad  return  to  say  that  A.  was  not  elected.  The  re- 
spondent  should  traverse  one  of  the  facts  alleged.4  Where, 
instead  of  making  a  return,  the  respondent  filed  a  bill,  ask- 
ing for  an  injunction  to  restrain  the  relator  from  further 
prosecuting  his  mandamus  proceeding,  the  court  refused  to 
take  the  bill  as  a  return,  and  properly  ordered  the  respond- 
ent to  make  a  return.5 

§  282.  Who  shall  make  the  return. —  The  return  to  the 
alternative  writ  must  be  made  by  those  to  whom  it  is  di- 
rected, and  if  other  parties  make  the  return  they  are  liable 
to  an  action  on  the  case,  and  are  also  punishable  by  attach- 
ment for  contempt  of  court.6  When  the  writ  is  directed  to 
a  corporation  or  to  a  board,  it  should  in  form  be  the  return 
of  such  corporation  or  board.7  A  return  by  individual 
members  of  a  board  is  not  a  return  by  the  board,  and  the 
court  may  order  it  to  be  withdrawn,8  or  to  be  stricken  from 
the  files.9    A  return  to  a  writ  of  mandamus,  directed  to  a 

!Q.  v.  Pomfret  (Mayor),  10  Mod.  6  State  v.   Pennsylvania  R.  R,  41 

107.     Reg.    v.   Norwich   (Mayor),  2  N.  J.  L.  250 ;  Dinwiddie  Justices  v. 

Salk.  436,  L.  Raym.  1244,  is  almost  Chesterfield  Justices,  5  Call,  556. 

a  similar  case.  7  People  v.  San  Francisco  (Sup'rs), 

2Regina  v.   Guise,   2    L.   Raym.  27  CaL   655;  King  v.  The  Baily,  1 

1008 ;  3  Salk.  88 ;  6  Mod.  89.  Keb.  33 ;  King  v.  St  Andrew  (Gov. 

3  Rex    v.    Abingdon    (Mayor),    2  of  Poor),  7  A.  &  E.  281. 

Salk.  432 ;  IK  Raym.  559.  8  McCoy  v.  Harnett  Co.  (Just),  4 

4  King  v.  York  (Mayor),  5  Term,    Jones,  180. 

66.  9  People  v.  San  Francisco  (Sup'rs), 

5  Neuse,  etc  Co.  v.  New  Berne  27  CaL  655 ;  Clarke  Co.  (Com'rs)  v. 
(Com'rs),  6  Jones,  204.  State,  61  Ind.  75.    When  the  writ  is 


348  PLEADINGS    AND    PRACTICE.  [§  283. 

county  court,  cannot  be  made  by  its  attorney.1  A  majority 
of  a  board  can  make  the  return  in  the  name  of  the  board. 
The  proper  proceeding  is  for  the  board  to  convene  and  ap- 
point one  of  their  body  to  make  the  proper  affidavit  and  do 
all  things  necessary,  they  agreeing  to  the  return  to  be  made.2 
A  return  for  a  municipal  corporation  should  be  made  by  the 
mayor  with  the  consent  of  a  majority  of  the  burgesses.3 
If  upon  a  consultation  a  majority  of  the  burgesses  be  against 
the  views  of  the  mayor  and  make  return  in  his  name,  it  shall 
be  taken  as  his  return  unless  he  disavow  it.4  Where  a  writ 
of  mandamus  was  directed  to  the  mayor,  bailiffs  and  bur- 
gesses, and  it  was  asserted  that  the  return,  which  had  been 
filed  in  their  joint  names,  was  made  by  the  mayor  and  a 
minority  of  the  bailiffs  and  burgesses,  the  court  refused  to 
try  the  question  on  affidavits,  but  allowed  the  parties,  if 
they  desired,  to  file  an  information  against  the  mayor.5 
When  the  board  cannot  agree  upon  their  return  and  there 
is  an  equality  of  votes,  in  the  quaint  language  of  the  old 
books,  they  must  agree,  or  else  they  shall  be  brought  up  as 
in  contempt  and  laid  by  the  heels  till  they  do  agree.6  If 
there  are  two  returns,  each  purporting  to  be  the  return 
of  the  board,  the  court  may  ascertain  which  is  the  return 
of  the  majority.7 

§  283.  Verification  of  the  return. —  At  common  law  the 
respondent  was  not  required  to  verify  his  return  to  the 
alternative  writ.8  The  court  may,  of  its  own  accord,  require 
the  respondent  to  swear  to  his  return.9     Such  an  order  has 

directed  to  each  member  of    the        5  Rex  v.  Abingdon  (Mayor),  2  Salk. 

board  by  name,  as  well  as  to  the  431. 

board,  under  the  New  York  statute        6  Reg.  v.  Chapman,  6  Mod.  152. 

they  may  answer  jointly  or  sev-        ''  People  v.  San  Francisco  (Sup'rs), 

erally.    People  v.  Police  Board,  46  27  Cal.  655. 

Hun.  296.  8  Burgess  of  Devises,  2  Keb.  725 

1  Dinwiddie  (Just.)  v.  Chesterfield  State    v.   Wickham,    65    Mo.    634 
(Just),  5  Call,  556.  State  v.  Edwards,  11  Mo.  Ap.  152 

2  McCoy  v.  Hartnett  Co.  (Just),  4  State  v.  Morris,  103  Ind.  161 ;  Talla- 
Jones,  180 ;  State  v.  McMillan,  8  poosa  (Com'rs'  Court)  v.  Tarver,  21 
Jones,  174.  Ala.  661. 

3  King  v.  Abingdon,  12  Mod.  308.         9  Audly's  Case,  1  Latch,  123. 

4  Reg.  v.  Chapman,  6  Mod.  152. 


§§  2S4,  285.]  PLEADINGS   AND    PKACTICE.  34:9 

been  issued  where  the  court  suspected  that  the  return  -was 
false.1  The  court  will  grant  such  an  order  at  its  own  dis- 
cretion, and  is  not  bound  to  do  so  at  the  petition  of  the  re- 
lator.2 In  some  states  the  law  or  the  rule  of  court  requires 
that  the  return  be  verified.3 

§  281.  Treatment  of  a  return  which  is  evasive  or  friv- 
olous.—  A  return  which  is  evasive,  frivolous,  or  ambiguous, 
will  not  be  tolerated.4    Where  such  a  return  is  presented,  the 
court  may  disregard  it,8  or  quash  it,6  or  strike  it  off  the  files 
on  motion,7  or  issue  a  peremptory  writ.8   When  the  return  is 
utterly  inapplicable  and  absurd,  or  it  appears  to  be  frivolous 
and  to  have  been  purposely  made  to  avoid  the  justice  of 
the  court,  the  court  may  also  grant  a  rule  on  the  respond- 
ent to  show  cause  why  an  attachment  should  not  issue 
against  him  for  contempt  of  court.9     If,  however,  a  return 
contains  or  sets  up  any  sufficient  reason  for  refusing  the 
mandamus,  it  should  not  be  quashed  as  a  whole,  though  in 
other  respects  it  be  evasive  and  irresponsive.10     If  the  facts 
averred  in  the  return  may  be  true  consistently  with  the  sug- 
gestion of  the  writ,  then  the  return  is  vicious.11 

§  285.  Demurrer  to  return,  and  rules  governing  it.— 
The  return  may  be  objected  to  by  a  motion  to  quash  or  by 
a  demurrer.  The  English  courts,  since  the  statute  of  9  Anne, 
chapter  20,  did  not  provide  for  a  demurrer  to  the  return,  did 
not  allow  a  demurrer  to  be  filed,  but  attained  the  same  end 
by  a  concilium.  At  present,  under  the  statute  of  6  and  7  Yic- 

iManaton's  Case,  Ray.  365.  Q.   v.  Poole  (Mayor),  1  Q.  B.  616; 

i  Burgess  of  Devises,  2  Keb.  725.  Q.  v.  St.  Andrews  (Gov.  etc.),  10  A. 

3  State  v.  Sumter  Co.  Coui'rs,  22  &  E.  736 ;  Harwood  v.  Marshall,  10 

Fla.  1 ;  Chance  v.  Temple,  1  Iowa,  Md.  451. 

179 ;  People  v.  Fulton  Co.  (Sup'rs),  53  7  Q.  v.  Payn,  11  A.  &  E.  955. 

Hun,  254;   Com.  v.  Henry.  49  Pa.  8  Williamsburgh  (Trustees),  In  re, 

St.     530 ;     Com.     v.     Philadelphia  1  Barb.  34. 

(Com'rs),  1  Whart.  1.  9King  v.  Robinson,  8  Mod.  336; 

*State    v.  Jones,   10    Iowa,    65;  Q.  v.  Poole  (Mayor),  1  Q.  B.  616. 

Com.  v.  Pittsburg  (Sel.  Council),  34  10  Legg  v.  Annapolis  (City),  42  Md. 

Pa.  St  496.  203. 

5  Sansoin  v.  Mercer,  68  Tex.  4S8.  n  Harwood   v.  Mai-shall,   10  Md. 

6  Com.  v.  Pittsburg,  34  Pa.  St  496 ;  451. 


350  PLEADINGS    AND    PRACTICE.  [§  285. 

toria,  a  demurrer  may  be  filed  to  a  return.  The  American 
courts,  which  expressly  or  impliedly  adopted  the  statute  of 
9  Anne,  departed  from  the  English  precedents,  and  allowed 
the  relator  to  file  a  demurrer  to  the  return.1  Some  of  the 
American  courts  did  not  regard  that  statute,  which  was  en- 
acted a  hundred  years  later  than  the  period  to  which  the 
common  law  of  England,  so  far  as  applicable,  is  generally 
adopted  as  authoritative  in  this  country,2  and  they  adopted 
the  strict  rules  of  the  early  English  decisions ;  but  it  is  be- 
lieved that  at  present  all  of  the  American  courts,  either  by 
virtue  of  statute  or  rule  of  court,  allow  a  demurrer  to  be 
filed  to  the  return.3  A  motion  for  a  peremptory  writ  on  the 
return  has  been  allowed,  but  such  motion  is  merely  a  sub- 
stitute for  a  general  demurrer,4  admitting  the  truth  of  the 
allegations  contained  in  the  return,  but  denying  their  suffi- 
ciency in  law.5  Objections,  which  are  required  to  be  taken 
by  special  demurrer,  or  by  motion  to  strike  out,  will  be  dis- 
regarded on  such  a  motion.6  On  the  argument  of  such  a 
motion,  the  relator  is  entitled  to  the  benefit  of  all  the  ad- 
missions in  the  return,  but  he  cannot  insist  upon  facts  al- 
leged by  him  in  his  pleadings  which  are  not  admitted.7  If 
any  material  averment  of  the  petition  or  alternative  writ 

i  Barney    v.   State,  42  Md.   480 ;  Clark  County,  95  U.  S.  769 ;  Barney 

Silverthorne  v.  Warren  R  R.,  33  v.  State,  42  Md.  480 ;  Vail  v.  People, 

N.  J.  L.  173 ;  New  Haven,  etc.  R.  R.  1  Wend.  38 ;  Commercial  Bank  v. 

v.   State,  44  Conn.   376 ;    State  v.  Canal  Commissioners,  10  Wend.  2.j. 
Ryan,  2  Mo.  Ap.  303 ;  State  v.  Su-        *  State  v.  Newman,  91   Mo.  445 ; 

pervisors  (Board),  64  Wis.  218.  State   v.   Jacksonville  (Mayor),   22 

2  The  common  law  of  England  is  Fla.  21 ;  State  v.  Marks,  74  Tenn. 
generally  accepted  as  authoritative  12 ;  Ward  v.  Flood,  48  Cal.  36 ;  Peo- 
here,  as  it  existed  prior  to  the  fourth  pie  v.  Fairman,  91  N.  Y.  385 ;  State 
year    of   the    reign     of    James    I.  v.  Smith.  104  Mo.  661. 

(March  23,  1606).    The  statute  of  9        5  People  v.  Westchester  Co.  (Su- 

Anne,  chapter  20,  was  enacted  in  pervisors),  73  N.  Y.  173 ;  Attala  Co. 

1710.  (Board  Police)  v.  Grant,  9  Sm.  &  Mar. 

3  People  v.  Baker,  35  Barb.  105;  77;  State  v.  Newman,  91  Mo.  445. 
Morgan  v.  Fleming,  24  W.  Ya..  186;        6  People  v.  San  Francisco  (Sup'rs), 
Phoenix  Iron  Co.  v.  Com.,  11-3  Pa.  27  Cal.  655. 

St.  563;  Com  V.Allegheny  (Com'rs),        ?  People   v-  Pritchard,   19  Mich. 
32  Pa   St  218;    United  States  v.    470. 


§§  2S6,  2S7.]  PLEADINGS    AND    PEACTICE.  351 

is  denied,  a  peremptory  writ  will  not  issue  on  the  plead- 
ings.1 The  overruling  of  a  motion  for  a  peremptory  writ 
of  mandamus  on  the  return  is  ordinarily  not  a  final  judg- 
ment, but  merely  a  refusal  of  the  writ  till  a  trial  on  the 
merits.2  Where  a  mandamus  proceeding  is  allowed  to  stand 
on  the  petition  and  answer,3  or  on  the  petition  and  answer 
to  show  cause,4  which  is  equivalent  to  a  motion  for  a  per- 
emptory writ  on  the  return,  the  allegations  of  the  answer, 
not  being;  controverted,  must  be  taken  as  true. 

§  286.  Subject  continued. —  The  same  rules  are  applica- 
ble to  a  demurrer  filed  in  a  mandamus  proceeding  as  when 
filed  in  any  other  legal  proceeding.  The  demurrer  to  a 
return  confesses  the  allegations  of  the  return  and  every 
material  allegation  of  the  writ  not  denied  or  confessed  and 
avoided  by  the  return.5  It  also  runs  back  to  the  first  de- 
fective pleading,  and  though  the  return  be  defective,  yet 
judgment  will  be  rendered  against  the  party  who  made  the 
first  error  in  substance  in  his  pleading.6  When  on  demurrer 
a  part  of  the  return  is  found  to  be  bad  and  a  part  to  be 
good,  the  judgment  thereon  must  be  for  the  respondent,7 
but  the  relator  may  afterwards  have  leave  to  traverse  the 
good  part  of  the  return  if  necessary.8  A  motion  for  a 
peremptory  writ  on  the  return,  being  merely  a  substitute 
for  a  general  demurrer,  is  subject  to  the  same  rules. 

§  287.  Amendment  of  return. —  If  the  motion  to  quash, 
or  the  demurrer  to  the  return,  is  sustained,  the  respondent, 
if  he  so  desires,  will  under  the  present  practice  be  allowed 
to  amend  his  return.9 

i  People  v.  Alameda  Co.  (Sup'rs),  47  Wis.  670 ;  Commercial  Bank  v. 

45  Cal.  395.  Canal  Com'rs,  10  Wend.  25 ;  Mor- 

2  Booth  v.  Strippleman,  61  Tex.  378.  gan  v.  Fleming,  24  W.  Va.  186 ;  Doo- 

3Aplin  v.  Midland  Co.  (Sup'rs),  little  v.  Co.  Court,  28  W.  Va.  158; 

84  Mich.  121.  People  v.  McCormick,  106  111.  184 ; 

4  Farnsworth  v.  Kalkaska  Co.,  56  People  v.  Hatch,  33  111.  9. 

Mich.   640;    Murphy  v.   Reeder  T.  7Q.  v.  New  Windsor  (Mayor),  7 

Treas.,  56  Mich.  505.  A.  &  E.  (N.  S.)  908. 

5  State  v.  Lean,  9  Wis.  279.  8  Q.  v.  North  Midland  R.  R,  11  A 
« People  v.  Baker,  35  Barb.  105;  &  E.  955;  Q.  v.  Dover  (Mayor),  11 

People  v.  Fulton  (Sup'rs),  14  Barb.     A.  &  E.  (N.  S.)  260. 
52 ;  State  v.  Milwaukee  Ch.  Com.,        9  See  §  294. 


352  TLEADINGS   AND    PKACTICE.  [§§  2SS,  2S9. 

§  288.  Reply  to  the  return. —  In  case  the  demurrer  to  the 
return  is  overruled,  the  decisions  of  the  American  courts 
are  not  uniform  on  the  question  whether  the  relator  is  en- 
titled to  put  in  a  reply  traversing  the  allegations  of  the 
return.  Most  of  the  courts,  though  the  matter  is  often  reg- 
ulated by  statute,  allow  the  relator  to  put  in  a  reply.1  It  has 
also  been  held  to  be  discretionary  with  the  court,  and  that 
such  action  should  be  allowed  when  justice  seems  to  demand 
it,  but  not  otherwise.2  The  reply  should  traverse  or  confess 
and  avoid  the  facts  set  up  in  the  return.3  Such  traverse  is 
only  necessary  when  the  return  makes  an  independent  aver- 
ment of  facts  on  which  the  relator  wishes  to  take  issue ;  if 
the  return  is  merelv  a  denial  of  the  allegations  contained  in 
the  petition  or  writ,  no  reply  is  necessary.4  The  traverse  to 
the  return  must  be  single,  direct  and  positive.5  The  object 
of  the  reply  is  to  enable  the  relator  to  traverse  or  confess 
and  avoid  the  return,  when  it,  in  the  first  instance,  suffi- 
ciently answers  the  writ,  and  not  to  repeat  material  allega- 
tions previously  made  which  have  been  left  entirely  unan- 
swered.6 "When  by  statute  the  pleadings  are  confined  to 
the  writ  and  the  return,  all  allegations  of  new  matter  con- 
tained in  the  return  are  considered  to  be  traversed.  Where 
the  reply  is  evasive,  it  may  be  treated  as  though  it  admitted 
the  facts  charged.7 

§  289.  Reply  and  subsequent  proceedings. —  The  statute 
of  9  Anne,  chapter  20,  provided  that  the  return  might  be 
traversed  and  the  proceedings  should  be  continued  in  the 
same  manner  as  though  it  were  an  action  for  a  false  return. 
This  statute  has  generally  been  adopted  as  a  part  of  the 
law  or  has  been  re-enacted  in  America.8  The  pleadings  are 
regulated  by  the  laws  of  the  states  relative  to  suits  in  the 

1  State  v.  Jones,  10  Iowa,  65.  5  Harwood    v.  Marshall,   10  Md. 

2  People  v.   McCormick,  108  111.    451. 

184.  6  State  v.  Lean,  9  Wis.  279. 

3  State  v.  Supervisors  (Board),  64  i  State  v.  Newman,  91  Mo.  445. 
Wis.  218 ;  Phoenix  Iron  Co.  v.  Com.,  8  Fisher  v.  Charleston,  17  W.  Va. 
113  Pa.  St  563.  595. 

<  State  v.  Pierce  Co.  (Sup'rs),  71 
Wis.  321. 


§  290.]  PLEADINGS   AND   PBACTICE.  353 

courts,1  and  the  rules  of  pleading  applicable  to  civil  suits 
apply  to  mandamus  proceedings.2  Where  a  reply  is  allowed 
to  the  return,3  if  it  does  not  traverse,  nor  confess  and  avoid 
the  material  facts  stated  in  the  return,  but  takes  issue  on 
immaterial  questions,  it  is  bad  on  demurrer.4 

§  290.  Trial  by  jury.  —  The  statute  of  9  Anne,  chapter 
20,  provided  that  the  issues  of  fact  in  a  mandamus  pro- 
ceeding should  be  tried  by  a  jury.5  In  adopting  that  statute, 
the  American  courts  have  not  considered  themselves  bound 
by  all  of  its  provisions,  and  some  of  the  courts,  on  the 
theory  that  a  mandamus  is  intended  to  be  a  speedy  pro- 
ceeding, have  denied  the  right  of  a  trial  by  jury,"  but  gen- 
erally a  trial  by  jury  is  allowed  in  accordance  with  the 
provisions  of  this  statute,7  or  because  the  local  statute 
specially  so  provides.8  It  has  been  held  that  it  is  discre- 
tionary with  the  court  whether  a  jury  shall  be  allowed  to  pass 
on  the  issues  of  fact.9  Also  by  statute  the  right  to  a  jury 
trial  as  to  the  issues  of  fact  has  been  confined  to  certain 
cases.10  Appellate  courts  generally  in  such  cases  send  the 
issues  of  fact  to  some  court  of  general  jurisdiction  to  be 
there  tried  by  a  jury,  with  orders  to  certify  the  verdict  to 

iln  some  states  the  only  plead-  Inch  382;  People  v.  Bd.  Police,  107 

ings  allowed  are  the  writ  and  the  N.  Y.  235 ;  Frey  v.  Michie,  68  Mich. 

answer.     Crans  v.  Francis,  24  Kan.  323;   Thompson  v.  U.  S.,  103  U.  S. 

750 ;  Long  v.  State,  17  Neb.  60.  480 ;  Com.  v.    McCandless,  129  Pa, 

2  Silver  v.  People,  45  I1L  224.  St  492 ;  Savannah  (Mayor)  v.  State, 

3  Maddox  v.Graham,  2  Mete.  (Ky.)  4  Ga.  26;  Noble  Co.  (Com'rs)  v. 
56.  Hunt,  33  Ohio  St.  169. 

*  State  v.  Eaton,  11  Wis.  29.  8  Weber  v.   Zimmerman,  23  Md. 

5  Q.  v.  St.  Pancras  (Directors  of  45 ;  Maddox  v.  Graham,  2  Mete. 
Poor),  7A.&E.  750 ;  Shrewsbury  v.  (Ky.)  56 ;  State  v.  Pierce  Co.  (Sup'rs), 
Kynaston,  7  Bro.  P.  C.  396;  Reg.  v.  71  Wis.  321 ;  State  v.  Chicago,  etc. 
Fall,  1  Q.  B.  636.  R.  P..  38  Minn.  281. 

6  Castle  v.  Lawlor,  47  Conn.  340;  » State  v-  Marks,  74  Tenn.  12; 
State  v.  Suwannee  Co.  (Com'rs),  21  State  v.  Goodfellow,  1  Mo.  Ap.  495. 
Yla.  1.  So  provided  by  statute.  Chumasero 

<  People  v.  Bd.  Educ,  127  111.  613 ;  v.  Potts,  1  Mont  242. 

State  v.  Burnsville  T.  Co.,  97  Ind.  w  Roscommon  v.  Midland  Sup'rs, 

416;  Burnsville  T.  Co.  v.  State,  119  49  Mich.  454. 
23 


O 


54  PLEADINGS   AND   PKACTTCE.  [§  291. 


such  courts.1  By  consent  of  the  parties  a  jury  may  be  dis- 
pensed with.2  In  some  cases  the  questions  of  fact  have  been 
referred  to  a  referee  for  decision.3  "When,  however,  there 
are  no  issues  of  fact  to  be  decided,  a  jury  is  properly  re- 
fused.4 

§  291.  Relator  must  prove  his  right  to  all  lie  asks  for. 
It  is  a  well-established  rule  in  mandamus  proceedings  that 
the  relator  must  prove  himself  entitled  to  every  claim  and 
to  all  the  redress  which  he  seeks  in  his  writ.  If  he  fails  to 
establish  any  part  of  his  claim,  or  if  his  demand  is  broader 
than  the  provisions  of  the  law,  his  application  will  be  de- 
nied in  toto.b  So  if  a  mandamus  is  asked  against  two  per- 
sons, and  can  only  be  sustained  against  one,  it  will  be  refused 
as  to  both.6  Some  courts,  however,  have  concluded  to  de- 
part from  the  old  rule,  which  was  due  to  the  fact  that  no 
amendments  as  to  material  matters  were  allowed  in  such 
proceedings,  and  no  longer  require  the  relator  to  prove  all 
of  his  claims.  The}r  assert,  and  very  properly,  that  there 
should  be  no  difference  in  this  regard  between  a  mandamus 
and  any  other  proceeding,  and  that  this  remedy  should  be 
applied  rationally.  A  mandamus  to  levy  a  tax  to  pay  high- 
way orders  was  granted,  though  as  to  some  of  the  orders 
the  relator  failed  to  prove  his  right  to  have  a  tax  levied 
for  their  payment.7  A  mandamus,  granted  by  a  lower 
court  to  a  city  controller  to  draw  his  warrant  on  the  city 

1  Calaveras  Co.  v.  Brockway,  30  Trustees),  3  A.  &  E.  535 ;  King  v.  St. 
Cal.  325 ;  People  v.  Alameda  Co.  Pancras  (Ch.  Trustees),  6  A.  &  E. 
(Sup'rs),  45  Cal.  395.  314;  Q.  v.  East,  etc.  Docks,  2  El.  & 

2  Milliken  v.  Weatherford  (City),  Bl.  466 ;  State  v.  Kansas  City,  etc. 
54  Tex.  388 ;  People  v.  Finger,  24  R.  R,  77  Mo.  143 ;  State  v.  Einstein, 
Barb.  341 ;  Calaveras  (County)  v-  46  N.  J.  L.  479 ;  People  v.  Baker.  35 
Brockway,  30  Cal.  325.  Barb.    105 ;    Chance  v.   Temple,    1 

3  State  v.  Columbia,  22  S.  C.  Iowa,  179;  Fisher  v.  Charleston 
582:  Newman  v.  Scott  Co.  (Just),  (Mayor),  17  W.  Va.  628;  Kemererv. 
1  Heisk.  787 ;  Rice,  etc.  Co.  v.  Wor-  State,  7  Neb.  130. 

cester  (City),  130  Mass.  575.  « People  v.  Yates,  40  111.  126.    See 

4  Lyman  v.  Martin,  2  Utah,  136.  §  234a. 

5  Reg.  v.  Tithe  Com'rs,  19  L.  J.  7  Hosier  v.  Higgins  Town  Board, 
Q.  B.  177;  King  v.  St.  Pancras  (Ch.  45  Mich.  340. 


§  292.]  PLEADINGS  AND  PRACTICE.  355 

treasurer  for  bills  which  he  had  approved,  and  on  the  city 
treasurer  to  pay  such  warrants,  was  dismissed  as  to  the 
treasurer  because  he  was  not  in  default,  but  was  affirmed  as 
to  the  controller.1  Where  a  writ  of  mandamus  asked  for 
slightly  more  money  than  the  town  treasurer  had  in  his 
possession,  the  peremptory  writ  was  issued  for  the  amount 
he  admitted  he  had  on  hand,  because  he  claimed  to  be  the 
custodian  of  the  fund  and  had  refused  to  pay  anything.2 
Where  the  courts  allow  the  relator  to  amend  his  pleadings 
in  substantial  matters,3  the  pleader  can  avoid  all  disastrous 
consequences  from  a  variance  between  his  allegations  and 
his  proof  by  obtaining  the  permission  of  the  court  to  make 
the  proper  amendments.  The  conduct  of  the  trial  of  a 
mandamus  proceeding  differs  in  no  respect  from  the  trial 
of  any  civil  action.  The  matters  charged  in  the  alternative 
writ,  or  in  the  petition  when  the  alternative  writ  is  dis- 
pensed with,  which  are  denied  by  the  respondent,  must  be 
proved  by  the  relator;  and  matters  in  avoidance  alleged  in 
the  return,  if  denied  by  the  relator,  must  be  proved  by  the 
respondent.4 

§  292.  General  rules  of  practice  and  of  pleading  as  ap- 
plicable to  mandamus  proceedings. —  The  rules  of  plead- 
ing and  of  practice  are  considered  to  be  applicable  to 
mandamus  proceedings  except  as  to  the  certainty  required 
in  the  writ  and  return,  and  except  as  to  amendments,  and 
more  especially  after  the  proceedings  have  under  the  statute 
of  9  Anne  been  assimilated  to  an  action  for  a  false  return. 
Such  is  the  drift  of  the  decisions  where  statutes  controlling 
those  questions  had  not  been  adopted.  The  courts  have 
decided  that,  on  failure  to  prosecute,  a  nonsuit  may  be 
granted,3  a  respondent  may  have  leave  to  withdraw  his  re- 
turn,6 a  new  trial  may  be  granted,7  a  motion  in  arrest  of 

i  State  v.  Mount,  21  La.  An.  352.  3  See  post,  §  294 

Under  the  provisions  of  a  practice  4  Newman,  Ex  parte,  81  U.  S.  152. 

act  a  similar  decision  was  rendered.  5  King  v.  Stafford,  4  T.  R.  689. 

People  v.  San  Francisco  (Sup'rs),  27  6  Rex  v.  Barker,  3  Burr.  1379. 

Cal.  655.  7Q,  v.   Manchester    (Council),    9 

2  People  v.  Mahoney,  30  Mich.  100.  Q.  B.  458. 


356  PLEADINGS    AND    PRACTICE.  [§  293. 

judgment  may  be  allowed,1  and  a  judgment  non  obstante 
veredicto  may  be  granted.2  Also,  when  it  is  found  neces- 
sary, an  alias  or  pluries  peremptory  mandamus  may  be 
awarded.3  When  on  a  trial  the  judgment  is  for  the  defend- 
ants, the  judgment  should  be,  it  is  considered  by  the  court 
that  the  defendants  go  without  day  and  recover  of  the  pe- 
titioners their  costs.4 

§  293.  Amendments  under  the  early  practice.—  Origi- 
nally great  strictness  was  required  in  mandamus  proceed- 
ings, and  any  error  was  fatal  to  the  party  making  it.  If  the 
relator  made  a  mistake,  the  proceedings  would  be  dismissed ; 
if  the  error  was  on  the  part  of  the  respondent,  the  per- 
emptory writ  would  be  granted.  Mere  formal  errors,  such 
as  a  mistake  in  an  affidavit  as  to  the  title  of  the  cause  or 
as  to  the  jurat,  might  be  corrected,  but  no  errors  of  sub- 
stance could  be  corrected.5  The  rule  was  almost  universal, 
that  the  court  would  not  allow  a  party  to  succeed  on  a 
second  application,  who  had  previously  applied  for  the  very 
same  thing  without  coining  properly  prepared,  when  he 
urged  no  ground  for  relief  which  he  might  not  have  urged 
before.6  Where  a  rule  on  a  corporation  to  show  cause  why 
a  mandamus  should  not  issue  to  it  was  refused,  because 
there  had  been  no  demand  and  refusal,  the  court  refused  a 
new  rule  to  the  same  effect  after  a  demand  and  refusal  had 
occurred,  stating  that  it  would  not  have  the  same  applica- 
tion renewed  from  time  to  time.7  The  alternative  writ 
was  allowed  to  be  amended  at  any  time  before  it  was  trav- 
ersed, but  not  afterwards.8     The  court  would  mould  the 

1  Pees  v.  Leeds  (Mayor),  Stra.  640 ;  4  Tucker  v.  Iredell  (Just.),  1  Jones, 
People  v.  Com'rs  Highways,  52  III  451 ;  State  v.  Deane,  23  Fla.  121. 
498.  Contra  as  against  the  respond-  5  Q.  v.  Great  Western  R.  R,  5  Ad. 
ent.    People  v.  Finger,  24  Barb.  341.  &  E.  (N.  S.)  597. 

2  Q.  v.  Stamford  (Mayor),  6  Ad.  &  E.  6  Q.  v.  Manchester,  etc.  R  R,  8  A. 
(N.  S.)  433 ;  Q.  v.  St.  Pancras  (Direct-  &  E.  413,  427 ;  Q.  v.  Great  Western 
ors  of  Poor),  7  A.  &  E.  750.  Contra,  R  R,  5  A.  &  E.  (N.  S.)  597 ;  Q.  v. 
People  v.  Metrop.  Police  (Bd.),  26  Pickles,  3  A.  &  E.  (N.  S.)  599. 

N.  Y.  316.  7  Thompson,  Ex  parte,  6  A.  &  E. 

3  People  v.  Delaware  Co.  (Sup'rs),    (N.  S.)  721. 

45  N.  Y.  196.  8Reg.  v.  Clitheroe,  6  Mod.   133; 


§  294.]  PLEADINGS    AND    PRACTICE.  357 

rule  to  show  cause  why  a  mandamus  should  not  issue,1  but 
would  not  mould  the  alternative  writ  itself.2 
§  294.  Amendments  under  the  present  practice.—  Of 

later  years  this  great  strictness  has  been  relaxed,  which  of 
itself  was  entirely  unnecessary  after  the  statute  of  9  Anne, 
chapter  20.     On  the  argument  on  a  concilium  of  the  valid- 
ity of  the  return,  the  relator,  at  the  suggestion  of  the  court, 
was  allowed  to  amend  the  alternative  writ  by  inserting  an 
allegation  that  the  respondent  was  notified  of  a  certain 
order  and  refused  to  obey  it.3     It  is  even  said  that  the  rule 
now  adopted  in  England  is  to  allow  amendments  at  any 
time  when  such  a  course  will  promote  justice.4  In  America, 
either  by  special  statute  or  by  subjecting  mandamus  pro- 
ceedings to  the  general  statutes  relative  to  amendments  of 
pleadings,5  or  by  the  adaptation  by  the  court  of  the  pro- 
ceedings in  mandamus  to  its  ideas  of  equity,6  amendments 
will  be  granted  at  any  time  when  such  a  course  will  pro- 
mote justice.7    But  the  relator  cannot  by  amendment  of 
his  alternative  writ  substitute  a  new  and  wholly  different 
cause  of  action,  since  this  is  contrary  to  the  rules  of  plead- 
ino-.8     Nor  is  the  privilege  of  amending  confined  to  the 
relator,  but  the  respondent  may  avail  himself  thereof,9  and 

King  v.  Stafford,  4  Term,  689 ;  Peo-  vin,  11  Wis.  153 ;  Meyer  v.  Dubuque 

pie  v.  Baker,  35  Barb.  105 ;  Com.  v.  (City),  43  Iowa,  592 ;  State  v.  Bai- 

Pittsburgh  (SeL  Coun.),  34  Pa,  St.  ley,  7  Iowa,  390 ;  State  v.  Warner, 

496.  55  Wis.  271. 

1  King  v.  St  Pancras  (Ch.  Trust-  6  United  States  v.  Union  P.  R  R, 
ees),  3  A.  &  E.  535.  4  Dill.  479 ;  State  v.  Gibbs,  13  Fla. 

2  King  v.  St.  Pancras  (Ch.  Trust-  55 ;  Lee  Co.  v.  State,  36  Ark.  276 ; 
ees),  3  A.  &  E.  535 ;  State  v.  Act  State  v.  Cheraw,  etc.  R.  R,  16  S.  C. 
Board  Aldermen,  1  Rich.  (N.  S.)  30.  524 ;  State  v.  Act.  Bd.  Aldermen,  1 

3  Q.  v.  Newbury,  1  Q.  B.  751,  758.     Rich.  (N.  S.),  30 ;  Arberry  v.  Beav- 
*  Com.  v.  Pittsburgh  (SeL  Coun.),     ers,  6  Tex.  457 ;  Morris  v.  State,  94 

34  Pa.  St.  496.  Ind.  565 ;  School  Dist  v.  Lander- 

&  State    v.   Milwaukee   (City),  22  baugh,  80  Mo.  190. 
Wis.    397 ;    People    v.   La    Grange        "  Com.  v.  Pittsburgh  (SeL  Coun.), 

(Town  Board),  2  Mich.  187 ;  State  34    Pa,  St.   496 ;  State  v.   Railway 

v.  Baggott,   96  Mo.  63 ;   Taylor  v.  (Assess,  of  Taxes),  51  N.  J.  L  279. 
Moss,  35  Mo.  Ap.  470;    People    v.        »  Wheeler  v.  Northern  C.  I.  Co.,  10 

Baker,  35  Barb.  105 ;  State  v.  Pierce  Colo.  583. 
Co.  (Suprs),  71  Wis.  321 ;  State  v.  Sla-        9  State  v.  Padgett  19  Fla,  518. 


358  PLEADINGS    AJSTD    PEACTICE.  [§  295. 

it  has  even  been  allowed  to  him  after  exceptions  were  filed 
to  his  return,1  after  a  motion  was  made  to  quash  his  return,2 
and  during  the  argument  for  a  judgment  on  the  verdict, 
when  issue  had  been  taken  on  an  immaterial  point.3  The 
amendment  is  optional  on  the  part  of  the  respondent, 
and  he  will  not  be  compelled  on  motion  to  amend  his  re- 
turn.4 The  only  exception  is,  that  a  peremptory  writ  of 
mandamus  is  not  amendable,  and  the  rule  is  that  the  per- 
emptory writ  must  follow  the  alternative  writ.5  The  al- 
ternative writ  may  be  properly  moulded  or  amended,  and 
the  peremptory  writ  may  be  issued  in  conformity  to  the 
amended  alternative  writ.6  Where,  on  appeal  from  a  decree 
awarding  a  peremptory  mandamus,  the  decree  was  ad- 
judged to  be  erroneous,  the  court  remanded  the  cause  with 
permission  to  the  relator  to  amend  his  alternative  writ, 
and  with  directions  to  issue  the  peremptory  writ  if  such 
amendments  were  made.7 

§  295.  All  the  issues  must  Ibe  disposed  of  before  the 
peremptory  writ  will  issue. —  If  on  the  trial  the  relator 
shows  that  his  claims  are  well  founded,  and  that  he  is  enti- 
tled to  all  the  remedies  he  asks,  a  peremptory  mandamus 
will  issue  in  his  favor.  The  court  will  not  order  a  peremp- 
tory writ  on  a  part  of  the  record ;  all  the  issues  presented 
by  the  return  must  first  be  disposed  of.8  Where  upon  the 
overruling  of  the  demurrer  filed  by  one  of  the  respondents, 
the  relator  was  entitled  to  a  peremptory  writ  of  mandamus 
against  him,  the  court  refused  to  issue  it  till  the  return  filed 
by  the  other  respondent  had  been  disposed  of.9 

i  Springfield    v.    Hampden    (Co.  waukee  (City),  22  Wis.  397 ;  State  v. 

Com'rs),  10  Pick.  59.  Baggott,  96  Mo.  63. 

2  King  v.  London  Dock  Co.,  5  A.  t  State    v.    Francis,   95    Mo.    44 ; 
&  E.  163,  note  a.  Columbia  Co.  (Com'rs)  v.  King,  13 

3  State  v.  School  Land  Com'rs,  9  Fla.  451. 

Wis.  200.  8  Q.  v.  Baldwin,  8  Ad.  &  E.  947 ; 

4  King  v.  Marriott,  1D.&R  166.  Gregg  v.  Pemberton,  53  CaL  251. 

5  See  §  260.  9  State  v.  Bergen  (Freeholders),  52 

6  State    v.    Rahway    (Assess,    of  N.  J.  L.  313. 
Taxes),  51  N.  J.  L  279 ;  State  v.  Mil- 


§  296.]  PLEADINGS   AND    PKACTIOE.  350 

§  296.  How  far  the  peremptory  writ  must  conform  to 
the  alternative. —  This  is  an  extraordinary  remedy,  and 
the  relator  is  strictly  required  to  prove  his  claim  to  every 
remedy  he  has  asked.  The  rule  has  always  been  that  the 
peremptory  writ  must  conform  strictly  to  the  alternative 
writ,1  except  that  the  words  containing  an  order  to  show 
cause  why  the  writ  has  not  been  obeyed  should  be  omitted.2 
If  the  relator  fails  to  prove  that  he  is  entitled  to  all  the  rem- 
edies he  asked,  the  writ  will  be  refused,  though  he  may 
show  that  he  is  entitled  to  a  part  of  what  he  asks.3  The 
rule,  that  the  peremptory  writ  must  conform  strictly  to  the 
alternative  writ,  is  correlative  to,  or  a  necessary  sequence  of, 
the  rule,  that  the  relator  must  prove  that  he  is  entitled  to 
all  he  has  asked ;  and  both  rules  were  established  at  a  time 
when  this  writ  was  looked  upon  as  a  high  prerogative  writ, 
only  to  be  used  in  extreme  cases,  and  when  the  greatest 
strictness  and  accuracy  of  expression  were  required.  Some 
of  the  courts  have  now  modified  the  rule,  and  are  content 
if  the  peremptory  writ  conforms  substantially  to  the  alter- 
native writ.  An  alternative  writ,  issued  on  July  5th,  or- 
dered the  holding  of  an  election  within  forty  days  thereafter. 
The  peremptory  writ,  issued  on  August  1st,  commanded  the 
respondents  to  order  an  election  to  be  held  under  the  local 
option  law,  as  in  the  alternative  writ  set  forth,  so  soon  as 

1  State  v.  Kansas  City,  etc.  R.  R,  2  State  v.  Jolinson  Co.  (Judge),  12 

77  Mo.  143 ;  School  District  v.  Lau-  Iowa,  237. 

derbaugh.   80    Mo.    190;    State    v.  3  state  v.   Union  (Township),  43 

Cheraw,  etc.  R   R,  16  S.   C.   524 ;  N.  J.  L.  518 ;  Texas,  etc.  R.  R   v. 

Fisher    v.   Charleston    (Mayor),    17  Jarvis,  80  Tex.  456;  15  S.  W.  Rep. 

W.  Va.  6*28;  State  v.  Holladay,  65  30;  State  v.   Field,  37  Mo.  Ap.  83. 

Mo.  76 ;  State  v.  Beloit  (Sup'rs),  20  In    Ohio    by    virtue    of    statutory 

Wis.  79 ;  State  Board  of  Educ.  v.  provision  a   peremptory  writ  may 

West  Point,  50  Miss.  638 ;  State  v.  issue  to  enforce   some  of  the  acts 

Johnson  Co.  (Board  of  Equal.),  10  called  for  in  the  mandatory  part 

Iowa,  157 ;  State  v.  Gibbs,  13  Fla.  of  the  alternative  writ,  unless  there 

55 ;  State  v.  Bergen  (Freeholders),  be  such   dependence  between  the 

52  N.  J.  L.  313 ;  Chance  v.  Temple,  various  things  asked  for   that  all 

1  Iowa,  179 ;  Q.  v.  East,  etc.  Docks,  must  stand  or  fall  together.     State 

2  El.  &  Bl.  466.  v.  Crites  (Ohio,  Feb.  24,  1891),  26 

N.  E.  Rep.  1052. 


360  PLEADINGS    AND   PEACTIOE.  [§  297. 

the  same  could  be  held  under  said  law.  The  two  writs 
were  considered  to  be  substantially  the  same.1  The  inser- 
tion in  the  peremptory  writ  of  the  title  of  the  statute 
under  which  the  respondent  was  required  to  act,  which  was 
omitted  in  the  alternative  writ,  wTas  considered  to  be  no 
variance,  since  the  law  implied  it.2  The  peremptory  writ 
may  vary  the  details  as  to  the  mode  of  doing  the  act  re- 
quired, provided  it  does  not  materially  enlarge  the  substan- 
tial terms  of  the  alternative  writ,  nor  exceed  them  beyond 
adding  merely  incidental  requirements.3  Where  the  per- 
emptory writ  was  more  specific  than  the  alternative  writ 
in  setting  out  a  form  of  preferred  stock  to  be  issued,  it  was 
held  that  the  two  writs  substantially  agreed.4  It  has  been 
held  that  the  court  may  grant  the  peremptory  writ  in  any 
form  consistent  with  the  case  made  by  the  complaint  and 
embraced  within  the  issues.5  So  if  more  than  one  act  is  re- 
quired in  order  to  obey  the  peremptory  writ,  the  court  may 
continue  the  cause  from  time  to  time,  till  all  such  acts  are 
performed,  and  all  further  orders  deemed  necessary  and 
subsequently  made  by  the  court  have  been  obeyed.6 

§  297.  When  the  peremptory  writ  will  l)e  gnashed  or 
disobedience  of  it  excused. —  Strictly  there  is  no  return  to 
a  peremptory  writ  of  mandamus,  but  a  certificate  of  per- 
fect obedience  and  due  execution  of  the  writ,7  wThich  is  made 
to  the  court  at  the  time  designated  in  the  peremptory  writ. 
The  court  may,  however,  on  application,  grant  a  rule  nisi 
to  show  cause  w7hy  the  peremptory  writ  should  not  be 
quashed.8    Where  the  court  was  convinced  that  the  officers 

1  State  v.  Schmitz,  36  Mo.  Ap.  550.  Chatham  Co.  (Board  of  Com'rs),  66 

2  State    v.    Rahway    (Assess,    of  N.   C.  486;   State  v.   Johnson  Co. 
Tax^s),  51  N.  J.  L.  279.  (Judge),  12  Iowa,  237;  Reg.  v.  Hud- 

3  People  v.  Dutchess,  etc  R.  R,  son,  9  Jur.  345 ;  Weber  v.  Zimmer- 
58  N.  Y.  152.  man,  23  Md.  45 ;  People  v.  Barnett 

4  State  v.  Cheraw,  etc.  R  R,  16  (Sup'rs),  91  111.  422 ;  State  v.  Smith, 
S.  C.  524.  9  Iowa,   334 ;   Com.   v.   Taylor,   36 

5  State  v.  Weld,  39  Minn.  426.  Pa.  St.  263 ;  Drew  v.  McLin,  16  Fla. 

6  Palmer  v.  Jones,  49  Iowa,  405.  17. 

7  3  Black.  Com  110;  Q.  v.  Poole  8  Reg.  v.  Hudson,  9  Jur.  345. 
(Mayor),  1  Q.  B.  616;  Sedberry  v. 


§  297.]  PLEADINGS  AND  PKACTICE.  361 

had  not  the  legal  power  to  do  the  act  commanded,  it  granted 
the  motion  to  quash  the  peremptory  writ.1     The  peremp- 
tory writ  may  also  be  quashed  on  motion,  if  it  is  in  excess 
of  the  alternative  writ  or  of  the  rule  made  absolute  on  cause 
shown,  or  if  the  court  is  convinced  on  any  ground  that  it 
ought  not  to  have  been  issued.2     It  may  be  quashed,  if  it 
was  improvidently,3  prematurely,  improperly  or  unneces- 
sarily issued,  or  if  on  its  face  it  is  bad  in  substance,  or  if  it 
be  impossible  to  obey  it,4  or  if  after  its  issuance  it  has  be- 
come improper  or  impossible  to  do  the  act  commanded.5 
When  the  peremptory  writ  has  been  unfairly  obtained,  as 
by  a  violation  of  an  agreement  to  stay  the  proceedings,  it 
will  be  set  aside  on  motion.6     Should  a  statute  be  enacted 
after  the  issuance  of  the  peremptory  writ  forbidding  obedi- 
ence or  making  obedience  impossible,  such  new  matter  will 
of  necessity  be  a  sufficient  return  if  the  statute  be  constitu- 
tional.7   All  that  is  necessary  in  the  peremptory  writ  is, 
that  the  order  describe  the  act  to  be  done  with  reasonable 
certainty,  that  the  defendant  may  know  what  to  do.    If  the 
defendant  in  good  faith  desires  to  comply  with  the  order, 
but  is  unable  to  do  so  from  the  uncertainty  of  the  mandate, 
the  court  will  no  doubt  relieve  him.8   Though  the  judges  of 
an  inferior  court  do  not  obey  the  mandate  of  the  superior 
court,  and  thereby  subject  themselves  to  an  attachment, 
yet  if  their  return  to  the  writ  shows  that  it  was  no  inten- 
tional contempt,  it  is  proper  to  issue  an  alias  writ  instead 
of  an  attachment.9    It  is  a  sufficient  return  to  a  peremp- 
tory writ,  that  the  act  commanded  has  been  done,  though 
not  by  the  defendant  personally.10    If  the  writ,  when  fully 

i  Long,  In  re,  14  L.  J.  Q.  B.  146 ;  Co.,  11  B.  Mon.  143 ;  State  v.  Jones, 

State   v.   Johnson  Co.   (Judge),   12  1  Ired.  414. 

Iowa,  237 ;  Weber  v.  Zimmerman,  6  Everitt  v.  People,  1  Caines,  8. 

23  Md.  45.  7  Sedberry  v.  Chatham  Co.  (Board 

2  State  v.  Rahway  (Assessors  of  of  Com'rs),  66  N.  C.  486. 

Taxes),  51  N.  J.  L.  279.  8  People  v.   Norstrand,  46  N.  Y. 

3  State  v.  Johnson  Co.  (Judge),  12    375. 

Iowa,  237.  9  Woodruff,  Ex  parte,  4  Ark.  630. 

4  Weber  v.  Zimmerman,  23  Md.  45.       k>  United    States    v.    Kendall,   5 

5  Clarke  Co.  (Just)  v.  Paris,  etc.     Cranch,  C.  C.  385. 


362  PLEADINGS   AKD   PKACTICE.  [§§  29S,  299. 

executed,  does  not  effectuate  the  purpose,  the  court  will 
award  a  second  or  auxiliary  writ  to  complete  the  act  begun 
and  to  administer  complete  justice.1 

§  298.  Attachment  for  making  no  return  to  or  for  not 
obeying  a  peremptory  writ. —  If  no  return  is  made  to  the 
peremptory  writ  the  court  will  grant  an  attachment  against 
those  persons  to  whom  the  writ  was  directed,2  or  an  alias 
peremptory  writ,  or  an  order  to  show  cause  why  an  attach- 
ment should  not  issue.3  "Where  one  of  the  respondents,  at 
the  time  when  they  were  required  to  make  a  return,  made 
a  return  that  he  was  willing  to  obey  the  peremptory  writ,  but 
the  other  two,  who  with  him  constituted  the  board,  refused 
to  do  so,  the  court  ordered  the  respondents  to  make  a 
sworn  return,  and  that  the  two  delinquent  respondents 
show  cause  why  they  should  not  be  attached  for  contempt.1 
A  motion  for  an  attachment  for  not  making  a  return  to  a  per- 
emptory writ  of  mandamus  was  granted,  but  was  refused 
as  to  some  of  the  respondents  who  had  not  the  power  to 
do  the  act  desired.5  So  if  the  peremptory  writ  is  not  obeyed, 
an  attachment  against  the  respondent  will  be  granted.6 
"When  an  attachment  is  sought  for  disobedience  of  a  peremp- 
tory writ  of  mandamus,  the  motion  therefor  is  supported 
by  affidavits,  and  the  court  grants  an  order  to  show  cause 
why  an  attachment  should  not  issue.7 

§  299.  The  peremptory  writ  must  be  fairly  and  hon- 
estly complied  with. —  There  must  be  a  fair  and  honest 
compliance  with  the  writ,  and  the  court  may  grant  a  rule 
to  show  cause  why  the  return  should  not  be  quashed  as 
evasive  and  fraudulent,  informal,  insufficient,8  or  frivolous 
and  purposely  made  to  avoid  the  justice  of  the  court,  and 
upon  a  hearing  may  order  a  new  return  to  be  made  and 

1  Rex  v.  Water  Eaton  (Lord  of  4  United  States  v.  Buchanan  Co., 
Manor  of),  2  J.  P.  Smith,  55.  5  Dil.  2S5. 

2  Buller's  Nisi  Prius,  197  ;  King  v.  5  President  v.  Elizabeth  (Mayor), 
Fowey  (Mayor),  5  Dow.  &  Ry.  614.  40  Fed.  R  799. 

3  Fry  v.  Montgomery  Co.  (Com'rs),  6  Buller's  Nisi  Prius,  197,  198. 

82  N.  C.  304 ;  State  v.  Alachua  Co.        '  Q.  v.  Poole  (Mayor),  1  Q.  B.  616. 
(Canv.).  17  Fla.  9.  estate  v.  Griscom,  3  Halst  136. 


§  30m.]  pleadings  AND  pi;a 

also  that  the  respondent  show  cause  why  he  should  not  be 
attached  for  contempt  of  court.1  A  peremptory  writ  to  re- 
store A.  to  an  office  is  obeyed  by  an  actual  restoration, and 
a  return  that  such  restoration  has  been  made  is  sufficient, 
though  at  the  time  of  such  restoration  the  respondents  no- 
tified A.  to  .-.how  cause  why  he  should  not  be  displaced  for 
misdemeanors  committed  by  him,  which  wen.-  specified,  and 
many  or  most  of  winch  had  already  been  urged  in  their  re- 
turn to  the  writ  as  the  causes  of  his  removal.2 

.  300.  Defenses  which  may  he  urged  against  an  attach- 
ment en  the  hearing  of  a  motion  to  show  cause  why  an 
attachment  should  not  issue  for  disobeying  a  peremp- 
tory mandamus.  When  a  rule  has  been  granted  to  show 
cause  why  an  attachment  should  not  issue  for  a  failure  to 
make  a  return  to  the  alternative  writ,  or  to  obey  a  peremp- 
tory writ  of  mandamus,  the  respondent  is  at  liberty  to 
show  any  excuse  he  may  have  for  such  disobedience,  and 
if  the  excuse  is  sufficient  in  the  eyes  of  the  court  the  writ  of 
attachment  will  not  issue.  An  answer  to  a  rule  to  show  cause 
■why  the  county  commissioners  should  not  be  attache  1  for 
not  obeying  a  peremptory  writ,  ordering  them  to  pay  a  judg- 
ment, that  the  entire  fund  which  could  be  raised  by  tax- 
ation was  required  to  meet  the  expenses  of  an  economical 
administration  of  the  county,  was  considered  to  be  sufficient, 
since  private  interests  must  give  way  to  public  interests.3 
A  motion  was  made  for  an  attachment  for  disobedience  of 
a  peremptory  writ  of  mandamus,  It  appeared  by  the  an- 
swer, that  by  a  change  in  the  law  new  questions  were  pre- 
sented, which  were  not  involved  in  the  former  decision. 
The  court  held  that  an  officer  acting  in  good  faith,  accord- 
ing to  his  best  judgment  as  to  the  effect  of  such  change, 
ought  not  to  be  punished  by  attachment,  even  if  mistaken 

1  Kinu;  v.  Robinson,  8  Mod  836;       8Reg,   v.  Jpswich  Corporation,  2 

State    v.    Crites    i,<j\i\<j,    June    16,  L  Raym.  1288. 
1891),  28  N.  E.   Sep.  178;  State  v.  '  romartie  v.   Bladen  (Com'rs), 

Ala<)jua    (Jo.    (C'auv.j,    17   Ha.    'J;  85  N.  C.  21L 
President  v.    Elizaljetn   (City,),   40 
Fed  it.  799. 


364  PLEADINGS   AND   PEACTIOE.  [§  301. 

in  his  judgment.  A  new  application  for  a  mandamus  was 
considered  to  be  proper,  that  a  new  decision  might  be  made 
upon  the  facts  and  law  then  existing.1  "When  the  operation 
of  a  peremptory  writ  of  mandamus  has  been  arrested  by  an 
arrangement  between  the  relator  and  respondent,  the  re- 
spondent will  not  be  attached  for  disobeying  it,  since  con- 
tempt of  the  court  cannot  be  imputed  to  him.2  "When  the 
judgment  of  a  court  ordering  a  peremptory  writ  has  been 
affirmed  on  appeal,  and  the  cause  has  been  remanded  for 
such  further  proceedings  as  right  and  justice  require,  no 
attachment  will  issue  for  not  obeying  such  peremptory 
writ,  which  was  suspended  by  the  writ  of  error,  but  the 
court  will  issue  an  alias  peremptory  writ.3  The  fact,  that 
circumstances  have  changed,  has  been  held  to  be  sufficient 
cause  for  quashing  the  writ  and  discharging  parties  under 
attachment  for  disobeying  it.  This  was  the  ruling  where 
the  respondents  had  been  ordered  to  restore  the  relator  to 
his  office  and  functions  of  pastor  of  a  religious  corporation, 
who  subsequently  became  disqualified  for  the  office  under 
the  charter  of  the  said  corporation.4 

§  301.  Defects  appearing  on  the  papers,  on  account  of 
which  an  attachment  for  disobedience  of  a  peremptory 
writ  of  mandamus  will  he  refused. —  "When  a  party  is 
called  upon  under  the  rule  of  court  to  show  cause  why 
an  attachment  should  not  issue  against  him  for  contempt 
of  court  in  not  obeying  a  peremptory  writ,  he  may  object 
to  the  validity  of  the  writ,  and  the  attachment  will  not  issue 
if  the  writ  be  vicious.5  A  motion  to  make  absolute  a  rule 
to  show  cause  why  an  attachment  should  not  issue  was  re- 
fused as  to  the  respondent,  because  he  had  gone  out  of 
office,  and  as  to  his  successor,  because  the  rule  was  directed 
to  the  respondent  by  name,  and  there  were  no  words  mak- 
ing it  applicable  to  his  successor.6    Proceedings  for  con- 

1  State  v.  Harvey,  14  Wis.  151.  4  Weber  v.  Zimmerman,  23  Md.  45. 

2  State  v.  Rahway,  50  N.  J.  L.  350.        »Q.  v.  Poole  (Mayor),  1  Q.  B.  616. 
^United    States    v.     Kendall,    5        estate  v.   Elkinton,  30  N.  J.  L. 

Cranch,  C.  C.  385.  335. 


8  302.]  PLEADINGS   AND    PEACTICE.  365 

tempt  were  brought  against  a  school  teacher  for  expelling 
a  child  from  a  public  school  after  he  had  been  ordered  by 
a  peremptory  mandamus  to  allow  the  child  to  return  to 
the  school.  His  answer  to  the  alternative  writ  had  alleged 
that  he  had  expelled  the  child  for  disobedience  of  a  certain 
rule,  and  a  demurrer  thereto  had  been  overruled.  The 
court  held  that  the  overruling  of  the  demurrer  was  a  legal 
decision  that  the  child  might  be  expelled  for  disobeying 
that  rule,  while  the  issue  of  the  peremptory  writ  was  a  de- 
cision that  the  child  was  expelled  for  another  cause ;  con- 
sequently the  subsequent  expulsion  of  the  child  for  an 
infraction  of  that  rule  was  no  disobedience  of  the  peremp- 
tory writ.1  The  rule  for  an  attachment  may  be  discharged 
for  defects  in  the  affidavit  for  the  attachment  —  such  a  de- 
fect, for  instance,  that  the  affiant  could  not  be  held  for  per- 
jury—though the  respondent  has  failed  to  show  cause 
under  the  rule.2 

§  302.  Proceedings  when  party  is  adjudged  guilty  of 
contempt  of  court.—  When  a  party  is  adjudged  to  have 
been  guilty  of  a  contempt  of  court,  it  is  customary  to  fine 
him,  and  to  commit  him  to  prison  till  he  obeys  the  mandate 
of  the  court  and  pays  the  fine.3  In  imposing  such  fine  for 
disobedience,  the  court  may  include  as  costs  a  fair  compen- 
sation to  the  attorneys  of  the  relator  in  such  proceedings.4 
If  the  court  had  jurisdiction  to  render  the  decree,  issuing  a 
peremptory  writ  of  mandamus,  no  matter  how  erroneous 
it  is,  the  defendant  is  bound  to  obey  it,  and  it  is  a  contempt 
of  the  court  to  disobey  it ; 5  if,  however,  it  had  no  jurisdiction 
to  render  it,  there  is  no  contempt  of  the  court  in  disobey- 
ing it.6  If  the  command  in  whole  or  in  part  is  beyond  the 
power  of  the  court,  the  writ  or  its  excess  is  void,  and  the 
court  has  no  right  to  punish  for  contempt  of  its  unauthor- 

i  Bowen  v.  Taylor,  127  Ind.  272.  4  People  v.  Rochester,  etc.  R  R,  76 

2  King  and  Newcastle-upon-Tine    N.  Y.  294. 

(Corp.),  1  Barn.  385.  5  State  v.   King,   29    Kans.   607; 

3  People  v.  Barnett  (Sup'rs),91  I1L    State  v.  Horner,  16  Mo.  Ap.  191. 
423.  <>  State  v.  Horner,  16  Mo.  Ap.  191. 


366  PLEADINGS    AND    PRACTICE.  [§  303. 

ized  requirements,  and  its  proceedings  in  contempt  for  dis- 
obedience thereto  are  void,  and  the  parties  imprisoned  for 
such  disobedience  may  be  released  by  the  writ  of  habeas 
corpus}  "Where  the  respondent  has  been  brought  before 
the  court  under  a  writ  of  attachment,  and  makes  a  return 
of  obedience  to  the  writ,  the  relator  may  reply  that  such 
obedience  is  a  mere  evasion.2 

§  303.  Proceedings  for  contempt  of  court  against  cor- 
porations and  boards. —  If  the  peremptory  mandamus  was 
issued  to  a  corporation,  and  the  order  of  the  court  has  been 
disregarded,  since  a  corporation  cannot  in  itself  be  guilty 
of  a  contempt,  all  proceedings  instituted  to  punish  for  the 
contempt  must  be  against  individuals.3  The  officers  of  the 
corporation,  or  members  of  the  board  or  tribunal,  must  be 
brought  before  the  court  by  their  individual  names,  that 
they  in  their  official  capacity  may  be  compelled  to  perform 
the  mandate,  and,  failing,  may  be  attached  and  punished  as 
individuals.4  "Whether  the  attachment  should  issue  against 
all  the  members  of  the  board  or  tribunal,  who  are  required 
by  joint  action  to  fulfill  the  requirements  of  the  writ,  is  a 
point  upon  which  the  authorities  are  not  agreed.  Some  of 
the  decisions  maintain  that  the  attachment'should  only  issue 
against  those  members  who  refuse  obedience  to  the  writ ; 5 
others  hold  that  it  should  issue  against  all  the  members  of 
the  board.*  A  further  ruling  has  been  made  that,  where 
the  writ  is  directed  to  several  persons  in  their  natural  char- 
acters, the  attachment  for  disobedience  must  issue  against 
all  the  respondents.7    The  authorities  all  agree  that,  when 

i  Rowland,  Ex  parte,  104  U.   S.  sq.  v.  Ledyard,  1  Ad.  &  E.  (N.  S.) 

604  616;  Buller's  Nisi  Prius,  197,  198; 

2  Com.  v.  Sheehan,  81*  Pa.  St.  132.  London  v.  Lynn,  1  H.  Black.  206 ; 

3  Bass  v.  Shakopee  (City),  27  Minn.  State  v.  Judge,  38  La.  An.  43. 
250 ;  Maddox  v.  Graham,  2  Mete.  6  state  v.  Smith,  9  Iowa,  334. 
(Ky.)56.  'Buller's    Nisi    Prius,    197,    198; 

4  Eufaula  (City  Council)  v.  Hick-  Brigenoth  (Bailiffs),  Case  of,  2  Stra. 
man,  57  Ala  338 ;  Bass  v.  Shakopee  808. 

(City),  27  Minn.  250;  St.  Louis  Co. 
Ct.  v.  Sparks,  10  Mo.  117. 


§  304.]  r LEADINGS    AND    PRACTICE.  307 

the  parties  are  before  the  court,  the  punishment  will  be 
proportioned  to  the  offense,  and  those,  who  were  ready  to 
obey  the  mandate  of  the  court,  will  not  be  adjudged  to  be 
in  contempt.1     Only  one  writ  of  attachment  should  issue 
against  the  members  of  each  board  or  tribunal.     If  more 
than  one  writ  is  issued,  they  will  be  consolidated.2    Those 
persons  who  are  in  office  at  the  time  the  peremptory  writ 
is  issued  are  the  parties  to  obey  it,  and  they  are  the  parties 
to  be  punished  in  case  of  disobedience.3    In  general,  before 
a  party  can  be  brought  into  contempt,  he  must  have  per- 
sonal notice.4     A  person,  who  is  a  party  to  the  proceedings, 
is  presumed  to  have  knowledge  of  all  of  the  proceedings.5 
When  the  respondents  have  gone  out  of  office  pending  the 
proceedings,  their  successors  should  have  notice  of  the  pro- 
ceedings.prior  to  the  institution  against  them  of  proceed- 
ings for  contempt.6     "When  the  law  dispenses  with  personal 
notice  and  allows  a  public  notice,  the  parties  in  contempt, 
if  they  had  no  actual  notice,  can  set  it  up  in  their  answers.7 
§  301.  When  an  appeal  lies  in  a  mandamus  proceeding 
under  English  law. —  Under  the  common  law,  as  it  existed 
prior  to  the  statute  of  9  Anne,  chapter  20,  there  was  no 
means  of  reviewing  by  appeal,  writ  of  error,  or  otherwise, 
a   judgment  granting  or  denying   a  peremptory  writ  of 
mandamus.     There  were  various  reasons  assigned  for  this 
ruling.     It  was  said  that  the  writ  did  not  purport  to  ad- 
judge or  decide  any  right;  that  it  was  rather  an  award  of 
an  execution  than  a  judgment;  that  it  was  a  mode  of  com- 
pelling the  performance  of  an  admitted  duty  rather  than 
a  decision  as  to  what  the  duty  was,  and  that  it  concluded 
nothing  and  was  no  finality.     The  proceedings  were  deter- 
mined on  motion,  and  no  issue  was  joined.     If  the  return, 

i  Boiler's  Nisi  Prius,  197, 198 ;  Eu-  Thompson    v.   United    States,    103 

faula  (City  Council)  v.  Hickman,  57  U.  S.  480. 

Ala.  338 ;  State   v.  Smith,  9  Iowa,  4  King  v.  Edgvean,  3  Term  R  352. 

334;  Com'rs  v.  Sellew,  99  U.  S.  624.  5  King  v.  Fowey  (Mayor),  5  Dow. 

2Durant     v.     Washington     Co.  &  Ry.  614. 

(Sup'rs),  Woolw.  377.  6See  §  238. 

3  Com'rs  v.  Sellew,  99  U.  S.  624;  7  King  v.  Edgvean,  3  Term  R  352. 


368  PLEADINGS    AND    PRACTICE.  [§  305. 

in  case  a  return  was  put  in,  was  sufficient  in  law,  the  pro- 
ceedings were  suspended;  if  it  was  not  sufficient,  the  per- 
emptory writ  was  issued.  The  decision  in  such  cases  was 
considered  to  be  merely  a  rule ;  no  formal  judgment  was 
entered,  and  originally  the  proceedings  were  not  entered 
up ;  consequently  there  were  no  such  proceedings  as  war- 
ranted a  review.1  Since  the  passage  of  the  statute  of  9 
Anne,  chapter  20,  the  relator  has  been  allowed  to  traverse 
the  return,  and  if  such  a  course  is  pursued,  a  writ  of  error 
will  lie,  because  a  final  judgment  may  in  such  case  be  given. 
It  was  considered  to  be  against  the  nature  of  a  writ  of 
error  to  lie  on  any  judgment,  save  where  an  issue  may  be 
joined  and  tried,  or  where  a  judgment  may  be  had  on  a 
joinder  in  demurrer.  If  there  be  a  verdict  or  a  judgment 
on  demurrer,  the  successful  party  shall  recover. his  costs, 
and  upon  such  judgment  a  writ  of  error  will  lie.2  If, 
however,  the  relator  resorted  to  the  summary  proceedings 
allowed  by  the  common  law,  without  traversing,  or  plead- 
ing to,  the  return,  no  writ  of  error  could  be  taken  from  the 
final  judgment,  since  the  common-law  rules  of  proceeding 
were  not  abrogated  by  the  statute  of  9  Anne,  chapter  20 
So  when  a  court  improperly  dismisses  an  appeal  on  the 
ground  that  it  has  no  jurisdiction,  it  may  be  compelled  by 
mandamus  to  reinstate  and  to  hear  it.4 

§  305.  An  appeal  is  granted  in  America  in  mandamus 
proceedings  whenever  the  action  taken  is  considered  to 
be  a  final  judgment. —  The  English  rule,  that  a  mandamus 
proceeding  cannot  be  reviewed,  unless  an  issue  of  fact  was 
made  therein  or  there  was  a  judgment  or  demurrer,  has  met 

1  Rex  v.  Dublin,  Stra.  586 ;  S.  C.  3  Black.  Com.  265 ;  New  Haven,  etc. 
on  appeal,  8  Mod.  27 ;  Pender  v.  E.  R.  v.  State,  44  Conn.  376 ;  People 
Herle,  3  Bro.  P.  C.  505 ;  Commercial  v.  Brooklyn  (Pres.),  13  Wend.  130. 
Bank  v.  Canal  Com'rs,  10  Wend,  25;  3pe0ple  v.  Brooklyn  (Pres.),  13 
People  v.  Brooklyn  (Pres.),  13  Wend.  Wend.  130 ;  New  Haven,  etc.  Co.  v. 
130;  New  Haven,  etc.  Co.  v.  State,  State,  44  Conn.  376;  Rex  v.  Dublin 
44  Conn.  376 ;  Layton  v.  State,  28  (Dean),  8  Mod.  27. 

N.  J.  L.  575 ;  Hardee  v.  Gibbs,  50        4  Regina  v.  Smith,  35  Up.  Can., 
Miss.  802.  Q.  B.  518. 

2  Rex  v.  Dublin  (Dean),  8  Mod.  27 ; 


& 

3 


§  306.] 


PLEADINGS    AND   PRACTICE. 


309 


with  but  little  favor  in  this  country.1  The  American  courts 
generally  have,  by  statute,  a  right  of  review  in  all  cases 
where  there  has  been  a  final  judgment  in  the  court  below, 
and  they  have  granted  such  review  in  mandamus  proceed- 
ings whenever  they  considered  the  action  of  the  lower  court 
to  be  a  final  judgment.2  But  in  all  cases  there  must  be  a 
final  judgment  before  an  appeal  can  be  taken.  A  prema- 
ture appeal  will  be  dismissed.3  Such  review  has  been 
granted,  when  the  peremptory  writ  was  awarded  on  the 
pleadings,4  or  on  the  petition  after  a  demurrer  thereto  had 
been  sustained  and  the  respondent  had  declined  to  plead 
further,5  when  the  peremptory  writ  was  issued  after  a  de- 
murrer to  the  return  had  been  sustained,8  and  when  the 
proceedings  were  dismissed  on  argument  after  a  return  had 
been  made  to  a  rule  to  show  cause  why  a  mandamus  should 
not  issue.7 

§  306.  Appeal  or  writ  of  error  lies  if  the  writ  is  re- 
fused on  the  reading  of  the  petition.—  When  the  court 


1  Hardee  v.  Gibbs,  50  Miss.  802. 

2  Davies  v.  Corbin,  112  U.  S.  36  ; 
United  States  v.  Addison,  22  How. 
174;  Careaga  v.  Fernald,  66  CaL 
351 ;  Cbance  v.  Temple,  1  Iowa,  179 ; 
State  v.  Hard,  25  Minn.  460 ;  Bean 
v.  People,  6  Colo.  98 ;  State  v.  Ot- 
tinger,  43  Ohio  St.  457 ;  State  v.  Lan- 
caster County,  13  Neb.  223.  In  Con- 
necticut the  granting  or  refusing  of 
a  mandamus  is  considered  to  be  a 
matter  of  discretion,  and  therefore 
not  subject  to  review  on  appeal. 
Chesebro  v.  Babcock,  59  Conn.  213. 
In  New  Jersey  the  early  Euglish 
view  bas  been  adopted,  and  a  review 
by  an  appellate  court  was  refused, 
because  the  proceedings  were  not 
a  civil  suit  for  the  determination  of 
private  rights,  but  an  exercise  of 
prerogative  power,  because  the 
order  awarding  the  writ  is  not  in 
the  nature  of  a  final  judgment  upon 

24 


a  question  of  right  between  the  par- 
ties, and  because  by  common  law  a 
writ  of  error  did  not  lie,  which  rule 
had  not  been  changed  by  statute  or 
custom.  It  was  stated  that,  if  pri- 
vate rights  were  decided  by  such  a 
proceeding,  a  question  as  to  the 
right  of  review  would  arise,  which 
was  not  presented  in  the  case  be- 
fore the  court  Layton  v.  State,  28 
N.  J.  L.  575. 

3  Watts  v.  Port  Deposit  (Pres.),  46 
Md.  500. 

4  Gregg  v.  Pemberton,  53  Cal.  251 ; 
Withers  v.  State,  36  Ala.  252. 

5  Lee  County  v.  State,  36  Ark.  276. 

6  New  Haven,  etc.  R  R.  v.  State, 
44  Conn.  376. 

'•  Hartman  v.  Greenhow,  102  U.  S. 
672 ;  Etheridge  v.  HalL  7  Port  47 ; 
State  v.  Chairman  County  Com'rs, 
4  Rich.  (N.  S.)  485. 


370  PLEADINGS   AND  PEACTICE.  [§  307. 

upon  the  hearing  of  the  application  decides  that,  upon  the 
allegations  made,  the  relator  is  not  entitled  to  a  writ  of 
mandamus,  and  refuses  to  grant  either  a  motion  to,  show 
cause  or  an  alternative  writ,  the  prevailing  opinion  in 
America  is,  that  such  action  in  a  final  judgment,  from  which 
an  appeal  or  a  writ  of  error  may  be  taken  to  the  appellate 
court.1  The  same  rule  applies  when,  on  a  hearing  of  the 
rule  to  show  cause  why  a  mandamus  should  not  issue,  the 
proceedings  are  dismissed.2  "Whether  an  appeal  or  a  writ  of 
error  must  be  resorted  to  will  depend  upon  the  local  statutes. 
§  307.  Proceedings  in  review  in  the  appellate  court. — 
On  the  review  of  mandamus  proceedings  in  an  appellate 
court,  the  respondent  cannot  raise  a  defense  which  is  not 
contained  in  his  return.3  Though  the.  relator  was  not  en- 
titled to  the  peremptory  writ  of  mandamus  when  it  was 
granted  to  him,  still  the  judgment  will  be  affirmed  if  he 
has  since  become  entitled  to  the  writ.4  Though  a  peremp- 
tory writ  be  ordered,  and  another  judgment  be  granted  for 

1  Ex  parte  De  Groat,  6  Wall.  497 ;  was  substituted  in  place  of  a  formal 
Brashear  v.  Mason,  6  How.  92;  return  and  demurrer  thereto,  an 
United  States  v.  Guthrie,  58  U.  S.  issue  of  law  was  presented,  and  a 
284;  Ex  parte  Morris,  11  Grat.  292.  writ  of  error  was  considered  to  be 
It  has  been  held  that,  if  the  writ  is  the  proper  remedy  for  reviewing  the 
refused  upon  the  reading  of  the  ap-  judgment  dismissing  the  proceed- 
plication,  then  there  is  no  such  judg-  ings.  State  v.  Ottinger,  43  Ohio  St 
ment  as  will  justify  a  writ  of  error,  457.  Either  proceeding,  a  writ  of 
and  that  the  proper  remedy  in  such  error  or  an  original  mandamus  pro- 
case  is  to  bring  an  original  man-  ceeding,  has  been  considered  to 
damns  proceeding  in  the  appellate  be  allowabla  Ex  parte  Candee,  48 
court.  State  v.  Oappeller.  37  Ohio  Ala  386.  In  Missouri,  in  such  cases, 
St.  121.  The  same  court  held  that,  no  review  is  allowed,  because  no 
when  an  issue  was  made  up,  as  pre-  final  judgment  has  been  granted, 
scribed  by  law,  presenting  a  ques-  the  English  rule  as  to  the  necessity 
tion  whether  the  peremptory  writ  of  an  issue  of  fact  or  law  being 
should  issue,  and  a  final  decision  on  adopted.  Shrever  v.  Livingston  Co., 
the  merits,  whether  such  issue  was  9  Mo.  195 ;  Ex  parte  Skaggs,  19  Mo. 
of  fact  or  of  law,  was  determined,  339. 

it  was  a  final  judgment,  to  review  2  Decatur  v.  Paulding,  14  Pet.  497. 

which  a  writ  of  error  would  lie.    In  3  People  v.  Green,  G4  N.  Y.  499. 

a  case  which  was  submitted  on  an  4  State  v.  Hoeflinger,  31  Wis.  257. 
agreed  statement  of  facts,  which 


§§  308,  309.]  PLEADINGS    AND    PRACTICE.  371 

the  costs  of  the  proceedings,  yet  the  two  judgments  are  in 
substance  and  effect  but  one  judgment,  and  but  one  appeal 
lies  therefrom.1 

§  308.  The  right  to  review  mandamus  proceedings  hy 
appeal  or  writ  of  error  does  not  always  exist. —  It  does 
not  follow  that,  in  all  cases  where  the  parties  consider  them- 
selves to  be  aggrieved  bv  the  decision  in  mandamus  pro- 
ceedings,  that  they  may  have  a  review  thereof.  There  may 
be  no  court  with  appellate  jurisdiction  or  with  jurisdiction 
in  such  cases.  The  first  occurs,  when  the  proceedings  were 
originally  instituted  in  the  court  possessing  the  highest  ap- 
pellate jurisdiction.  The  latter  occurs,  when  such  appellate 
court  has  jurisdiction  by  review  only  over  certain  subjects, 
or  with  limitations  as  to  the  amount  involved  in  litigation. 
Formerly  a  writ  of  error  in  a  mandamus  proceeding  would 
not  lie  to  the  supreme  court  of  the  United  States,  unless 
property  of  a  certain  value  was  involved  in  the  proceed- 
ings ; 2  but  the  act  creating  the  federal  circuit  courts  of  ap- 
peal, March  3,  1891,  removes  all  limitations  of  that  nature 
relative  to  appeals  to  those  courts,  and  also  relative  to  ap- 
peals to  the  United  States  supreme  court. 

§  309.  Is  peremptory  mandamus  suspended  Iby  an  ap- 
peal with  an  indemnifying  bond?  —  In  the  absence  of  any 
statute  specially  applicable  thereto,  it  has  been  a  disputed 
question  whether  an  appeal  or  writ  of  error,  supported  by 
a  bond  to  protect  the  appellee  or  defendant  in  error,  will 
act  as  a  suspension  of  the  decree  for  a  peremptory  man- 
damus. The  English  rule  is,  that  such  order  still  remains 
the  judgment  of  the  court,  which  has  not  been  reversed, 
and  that,  to  allow  it  to  be  suspended  by  proceedings  for  a 
review,  would  in  many  cases,  owing  to  the  short  terms  of 
office,  be  a  denial  of  justice.3  The  same  view  is  taken  by 
some  of  the  American  courts.4     Other  courts  hold  that  the 

i  State  v.  Manitowoc  Co.  (Clerk),  3  Dublin    (Dean)  v.    Dowgatt,    1 

48  Wis.  112.  Peere  Williams,  348, 351 ;  Montague 

*  United  States    v.   Addison,    22  v.  Dudman,  2  Ves.  Sr.  396. 

How.  174;  Columbian  Ins.  Co.  v.  ^Pinckney  v-  Henegan,  2  Strob. 
Wheelright,  7  Wheat.  534. 


372  PLEADINGS    AND   PKACTICE.  [§  310. 

writ  of  mandamus  has  lost  its  prerogative  character,  that 
the  action  of  the  court  in  disposing  of  the  matter  is  a  final 
judgment,  which  judgment  is  like  the  judgment  in  an  or- 
dinary action  at  law,  and  therefore  is  stayed,  as  are  other 
judgments,  where  a  proper  bond  is  executed  for  the  protec- 
tion of  the  adverse  party,  pending  an  appeal  or  writ  of  error.1 
The  supreme  court  of  the  United  States  held  that  under  the 
general  law  a  proper  bond  of  indemnity  acts  as  a  supersedeas 
during  the  pendency  of  a  writ  of  error,  and  that  the  proper 
mode  of  reviewing  the  judgments  of  inferior  courts  in  man- 
damus proceedings  is  by  a  writ  of  error.2  So  long  as  the 
damages  awarded  in  a  mandamus  proceeding  are  confined 
to  the  costs  of  the  writ,  and  so  long  as  it  is  held  that  a 
mandamus  proceeding  is  a  bar  to  a  suit  for  damages,  it 
seems  to  the  writer  that  the  peremptory  writ  should  issue,3 
though  a  writ  of  error  has  been  allowed  or  an  appeal  has 
been  taken  from  the  judgment  in  favor  of  the  relator. 

§  310.  Costs  in  mandamus  proceedings.— The  award  of 
costs  in  proceedings  in  mandamus  is  according  to  the  dis- 
cretion of  the  court.  They  are  awarded,  or  divided,  or  re- 
fused, as  under  the  circumstances  seems  proper  to  the  court  ;4 
but  it  has  been  considered  to  be  such  a  matter  of  course  to 
grant  the  costs  to  the  party  ultimately  succeeding,  that  very 

250 ;  Tyler  v.  Hamersley,  44  Conn.  8  See  §§  310,  311. 

393 ;  Kaye  v.  Kean,  18  B.  Mon.  839 ;  4  Reg.  v.  St.  Saviours,  7  A.  &  E. 

State  v.  Meeker,  19  Neb.  444.  925 ;  Reg.  v.  Harden,  23  L.  J.  Q.  B. 

i  Griffin  v.  Wakelee,  42  Tex.  513;  127;  State  v.  McCullough,  3  Nev. 

State  v.  Lewis,  76  Mo.  370 ;  Church-  202 ;  Fox  v.  Whitney,  32  N.  H.  408 ; 

ill  v.  Martin,  65  Tex.  367 ;  People  v.  State  v.   Bonnifield,  10  Nev.  401 ; 

Highway  Conrrs,  25  How.  Pr.  257 ;  Tuolumne    County    v.    Stanislaus 

State    v.   Marshall    Co.  (Judge),  7  County,  6  Cal.  440 ;  People  v.  Police 

Iowa,   186 ;    Morris,   Ex    parte,   11  Com'rs,  108  N.  Y.  475 ;  President  v. 

Grat.  292;  United  States  v.  Colum-  Elizabeth  (Mayor,  etc.),  40  Fed.  R. 

bian  Ins.  Co.,  2  Cranch,  C.  C.  266 ;  799 ;  State  v.  Berg,  76  Mo.  136 ;  Q, 

State  v.  Superior  Court  (Wash.,  Jan.  v.  Dover  (Mayor),  11  Ad.  &  E.  (N.  S.) 

16,  1891),  25  Pac.  Rep.  1007.  260 ;  State  v.  County  Treas.,  10  Rich. 

2  United    States  v.    Addison,  22  (N.  S.)  40;  People  v.  Pritchard,  19 

How.  174 ;  Hartman  v.  Greenhow,  Mich.  470 ;  Tennant  v.  Crocker,  85 

102  U.  S.  672 ;  Davies  v.  Corbin,  112  Mich.  328 ;  State  v.  Johnson  County 

U.  S.  36.  (Judge),  12  Iowa,  237. 


§  310.]  PLEADINGS    AND    PRACTICE.  373 

strong  grounds  will  be  required  to  induce  the  court  to  de- 
part from  the  general  rule.1  We  have  found  but  one  case 
where  damages  for  the  injury  sustained  were  awarded  as 
costs,  and  in  that  case  the  statute  so  provided.  The  relator 
was  expelled  from  a  society,  and,  by  reason  thereof,  had 
been  discharged  from  his  situation.  "When  he  was  restored 
by  mandamus  to  his  society  membership,  he  was  allowed 
$400  as  damages  and  $50  as  costs.2 

i  Q.  v.  Newbury,  1  Q.  B.  751.    It  to  his  costs.     U.  S.  v.  Schurz,  102 

was  considered  that,  according  to  U.  S.  378. 

the  practice  of  the  court,  the  sue-  2  People  v.  Musical  M.  P.  Union, 

cessful   party  was  always  entitled  118  N.  Y.  101. 


CHAPTEK  20. 

MISCELLANEOUS  PRINCIPLES. 

§  311.    Mandamus  bars  a  suit  for  damages,  and  vice  versa, 

312.  An  injunction  will  not  issue  against  the  prosecution  of  a  man- 

damus. 

313.  Mandamus  not  always  issued  when  there  is  no  other  remedy. 

314.  Statute  of  limitations,  how  far  applicable. 

315.  Res  judicata  in  mandamus  proceedings. 

§  311.  Mandamus  bars  a  suit  for  damages,  and  vice 
Tersa. —  An  application  for  a  writ  of  mandamus  is  based 
on  the  theory  that  the  relator  has  no  other  remedy  to  re- 
dress the  wrong  he  has  suffered.  "When,  however,  a  party 
brings  an  action  to  obtain  damages  for  a  wrong  which  he 
has  suffered,  he  thereby  admits  that  such  action  furnishes 
a  compensation  for  the  injury  he  has  suffered.  As  a  con- 
sequence, the  two  proceedings  are  antagonistic  to  each  other 
in  their  applicability,  and  the  use  of  one  logically  is  a  bar 
to  the  use  of  the  other.  It  is  accordingly  held  that,  by 
bringing  a  suit  for  damages,  a  party  waives  all  right  to 
apply  for  a  mandamus,  and  vice  versa.1  A  party,  who  had 
sued  for  damages  for  wrongful  expulsion  from  a  corpora- 
tion, was  held  to  have  waived  all  right  to  seek  a  restoration 
by  the  writ  of  mandamus?  Where,  however,  it  was  apparent 
that  the  damage  suit  could  not  be  maintained,  in  several 
cases  the  courts  have  refused  to  consider  it  as  a  bar  to  a  man- 
damus proceeding.  A  school  teacher  sued  a  township  for 
her  salary  as  such  teacher,  and  obtained  a  judgment,  which 
the  defendant  appealed.  Pending  such  appeal,  she  sought 
to  obtain  the  money  due  her  by  a  mandamus  proceeding. 
The  court  allowed  the  mandamus  to  be  prosecuted,  because 

1  Kendall  v.  Stokes,  3  How.  87;        2  state  v.Slavonska  Lipa,  28  Ohio 
State  v.  Ryan,  2  Mo.  Ap.  303.  St  665. 


§§  312,  313.]  MISCELLANEOUS   PKLNCIPLES.  375 

it  appeared  that  she  had  failed  to  take  certain  necessary 
steps  before  bringing  her  civil  suit,  and  that,  therefore,  such 
suit  must  fail.1  A  mere  colorable  suit,  which  was  not  main- 
tainable, was  considered  to  be  no  bar  to  an  application  for 
a  mandamus? 

§  312.  An  injunction  will  not  issue  against  the  prose- 
cution of  a  mandamus. —  A  chancery  court  has  no  author- 
ity to  enjoin  further  proceedings  in  an  application  for  a 
mandamus.  "  The  reason  is,  that  a  mandamus  is  not  a  writ 
remedial,  but  mandatory.  It  is  vested  in  the  king's  superior 
court  of  common  law  to  compel  inferior  courts  to  do  some- 
thing relative  to  the  public.  That  court  has  a  great  latitude 
and  discretion  in  cases  of  that  kind ;  can  judge  of  all  the 
circumstances,  and  is  not  bound  by  such  strict  rules  as  in 
cases  of  common  rights."  3  It  is  said,  that  to  allow  such 
interference  would  interrupt  the  course  of  judicial  proceed- 
ings, and  lead  to  a  conflict  of  jurisdiction,  producing  the 
greatest  confusion,  and  tending  to  subvert  the  administra- 
tion of  justice.4  The  court  which  first  obtains  jurisdiction 
in  any  matter  will  not  be  deterred  from  issuing  a  per- 
emptory mandate  therein,  by  the  fact  that  another  court, 
in  proceedings  subsequently  begun,  has  issued  an  injunction 
restraining  the  parties  from  prosecuting  the  matter  further.5 

§  313.  Mandamus  not  always  issued  when  there  is  no 
other  remedy. —  In  a  number  of  instances  the  courts  have 
stated  that  though  there  was  a  wrong  and  no  remedy 
therefor,  that  it  did  not  follow  that  the  writ  of  mandamus 
would  issue.6  This  at  first  sight  seems  to  be  a  strange 
proposition,  when  it  is  remembered  that  the  writ  is  issued 

i  Apgar  v.  Trustees,  34  N.  J.  L.  Washington  C.  Court,  10  Bush,  564 ; 
308.  Riggs  y.  Johnson  Co.,  6  Wall.  166 ; 

2  People  v.  State  Treas.,  24  Mich.     Weber  v.  Lee  Co.,  6  Wall.  210. 

468.  6  state  v.  Thayer,  10  Mo.  Ap.  540 ; 

3  Montague  v.  Dudrnan,  2  Ves.  Sr.  People  v.  Dutchess  C.  P.  (Judges),  20 
396 ;  Columbia  Co.  (Com'rs)  v.  Bry-  Wend.  658 ;  Ostrander,  Ex  parte,  1 
son,  13  Fla.  281.  Denio,   679 ;    Ewing  v.   Cohen,  63 

4  Weber  v.  Zimmerman,  23  Md.  45.  Tex.  482. 

5  Cumberland,  etc.  R.  R,  v.  Judge 


376  MISCELLANEOUS   PRINCIPLES.  [§  313. 

because  there  is  no  other  remedy,  and  the  absence  of  any 
other  remedy  is  held  to  be  a  sufficient  warrant  for  the  writ.1 
It  is  well  settled  that,  when  a  judicial  discretion  is  imposed, 
mandamus  is  not  the  proper  remedy  whereby  to  review  it.2 
There  are  few  cases  where  the  acts  of  officers  acting  judi- 
cially are  not  reviewable  by  certiorari,  appeal  or  writ  of 
error,  and  when  they  are  not  so  reviewable,  it  is  clear  the 
law  intended  such  action  to  be  final.  So  the  statement 
should  rather  be,  there  is  no  review  by  mandamus  of  an 
action  by  a  public  officer  calling  for  the  exercise  of  judg- 
ment or  discretion,  when  the  law  intends  such  action  to  be 
final.3  The  action  was  considered  to  be  final  and  not  sub- 
ject to  review  by  mandamus:  in  the  matter  of  licensing 
dram-shops,  when  the  court  was  allowed  a  discretion ; 4  on 
the  question  of  issuing  township  bonds  in  aid  of  a  railroad 
upon  presentation  of  a  petition,  concerning  which  the 
assessors  were  to  decide  whether  it  complied  with  the  law ; 5 
in  the  exclusion,  without  a  proper  hearing  on  the  merits,  of 
one  claiming  to  have  been  elected  an  alderman,  when  by 
charter  the  common  council  were  the  final  judges  in  such 
elections ; 6  when  the  mayor  and  common  council  have  de- 
termined that  a  party  has  sustained  no  damages  by  virtue 
of  a  condemnation  of  property ; 7  when  a  school  committee, 
having  authority  to  decide  upon  all  questions  relative  to  the 

!Rex  v.  Barker,  3  Burr.  1265;  3  3  Wood  v.  Strother,  76  Cal.  545 

Black.  Com.  110;  Prop'rs  St  Luke's  Morley  v.   Power,    73    Tenn.   691 

Church  v.  Slack,  7  Cush.  226 ;  Brad-  Scott  v.  Superior  Court,  75  Cal.  114 , 

ley,  Ex  parte,  7  Wall.  364;  Napier  Lewis  v.  Barclay,  35  Cal.  213;  Peo^ 

v.  Poe,  12  Ga.  170 ;  Poor  Com'rs  v.  pie  v.  Weston,  28  Cal.  639 ;  Morton 

Lynah,  2  McCord,    170 ;   People  v.  v.  Compt  Gen.,  4  Rich.  (N.  S.)  430 ; 

New  York  (Mayor),  10  Wend.  393.  Grier  v.  Shaekleford,  3  Brev.  491. 

2  State  v.   Nelson,   21   Neb.   572;  <  Whittington,  Ex  parte,  34  Ark. 

State  v.  Kendall,  15  Neb.  262 ;  Cari-  394. 

aga  v.  Dryden,  29  Cal.  307 ;  Hoole  »  Rowland  v.  Eldredge,  43  N.  Y. 

v.  Kincaid,  16  Nev.  217 ;  Scripture  457. 

v.   Burns,  59  Iowa,  70 ;    Newport  6  People  v.  Fitzgerald,  41  Mich.  2. 

(City)  v.  Berry,  80  Ky.  354 ;  Oneida  ?  Smith  v.  Boston  (Mayor),  1  Gray, 

C  P.  (Judges)  v.  People,  18  Wend.  73. 
79 :  Lewis  v.  Barclay,  35  Cal.  213. 


§  31-i.]  MISCELLANEOUS  PEIXCIPLES.  077 

qualifications,  elections  and  returns  of  its  members,  have  de- 
clared a  seat  therein  vacant  for  want  of  a  legal  election  and 
of  qualification  by  the  petitioner,  though  the  committee 
stated  in  its  record  that  the  only  reason  for  its  decision  was 
because  the  petitioner  was  a  woman ; '  and  when  a  visitor 
of  a  corporation  or  the  court  of  a  corporation  having  juris- 
diction has  acted  in  a  case.2    Where  a  case  has  once  been 
heard  by  a  court  of  justice,  it  cannot  be  said  there  is  a  de- 
nial of  justice  because  no  review  is  allowed  by  mandamus, 
appeal  or  otherwise.     There  must  be  some  tribunal  whose 
decision  is  final,  and  it  is  for  the  law  to  decide  what  decis- 
ion shall  be  final.    Where  a  superior  court  has  not  appel- 
late jurisdiction  in  the  case,  it  will  not  review  the  action  of 
the  lower  court  by  mandamus?    A  court  dismissed  an  ap- 
peal from  a  justice  of  the  peace  because  a  revenue  stamp 
was  not  put  on  the  document  in  suit  within  the  proper 
time.     Whether  such  decision  was  correct  could  only  be 
determined  by  examining  the  evidence,  and  such  action 
would  make  a  mandamus  a  substitute  for  an  appeal.     The 
writ  was  dismissed,  though  the  amount  was  too  small  to 
authorize  an  appeal.4     The  fact  that  the  amount  was  too 
small  to  permit  an  appeal  does  not  authorize  the  issuance 
of  this  writ.5    Where  an  appellate  court  dismisses  a  case 
for  want  of  jurisdiction,  it  judicially  determines  a  question 
incident  to  the  proceedings,  and  therefore  a  mandamus  will 
not  lie  to  reinstate  the  case,  though  there  is  no  other  mode 
of  reviewing  such  action.     This  writ  cannot  be  used  as  a 
writ  of  error.6 

§  314.  Statute  of  limitations,  how  far  applicable.— 
The  object  of  the  law  is  to  put  an  end  to  ligitation,  and  for 

i  Peabody  v.  Boston  (School  Com.),  Ewing  v.  Cohen,  63  Tex.  482 ;  State 

115  Mass.  383.  v.  Thayer,  10  Mo.  Ap.  540 ;  Ostran- 

2  6  Bacon's  Ab.,  title  "  Man.,"  C.  2 ;  der,  Ex  parte,  1  Denio,  679. 
Lord  Holt's  dissenting  opinion  in  4  State  v.  Wright,  4  Nev.  119. 
Phillips  v.  Bury,  2  T.  R  356;  sus-  &  Newman,   Ex    parte,   81    U.   a 
tained  on  appeal,  Phillips  v.  Bury,  152 ;  Burdett,  In  re,  127  U.  S.  771. 

4  Mod.  106;    King  v.   Cambridge        « People  v.  Garnett,  130  I1L  340. 
(Chancellor),  6T.R  89.  See  §  201. 

3  Newman,  Ex  parte,  81  U.  S.  152 ; 


378  MISCELLANEOUS  PEINCIPLES.  [§314. 

that  purpose  statutes  of  limitation  have  been  passed  from 
time  to  time,  which  are  considered  to  be  statutes  of  re- 
pose. As  a  general  rule,  such  statutes  are  not  considered  to 
apply  to  the  writ  of  mandamus', l  yet  where  this  writ  is  con- 
sidered to  be  an  ordinary  action  at  law,  or  the  phraseology  of 
the  statute  of  limitations  is  broad  enough  to  include  it,  the 
courts  have  ruled  that  this  writ  is  included  therein.2  In  their 
discretion,  however,  many  courts  have  decided  that  this  stat- 
ute applies  by  analogy,  and  when  a  suit  for  a  similar  cause  of 
action  is  barred,  they  refuse  the  assistance  of  this  writ.3  A 
mandamus  was  applied  for  to  compel  the  clerk  of  the  board 
of  supervisors  to  put  the  county  seal  on  a  warrant  which 
his  predecessor  had  failed  to  do.  More  than  three  years 
had  elapsed,  which  was  the  time  limited  for  actions  against 
officers  for  omission  of  official  duty.  Mandamus  was  con- 
sidered to  be  an  action  for  failure  to  perform  official  duty, 
and  the  writ  was  refused.4  A  mandamus  to  collect  a  judg- 
ment, obtained  against  a  municipality  on  its  bonds,  is  con- 
sidered to  be  equivalent  to  the  statutory  writ  of  execution, 
and  the  bar  of  the  statute  against  the  latter  is  applied  to 
the  former.5    Even  though  the  judgment  becomes  barred 


1  State  v.  Meagher,  57  Vt  398 ;  of  an  execution  to  ten  years  after 
State  v.  Knight,  31  S.  C.  81 ;  Chinn  the  date  of  the  judgment  did  not 
v.  Trustees,  32  Ohio  St.  236 ;  Klein  apply  to  such  cases,  because  an  exe- 
v.  Smith  Co.  (Bd.  Com'rs),  54  Miss,  cution  never  ran  against  a  munic- 
254.  ipality,  and  besides,  the  judgment 

2  Haymore  v.  Yadkin  (Com'rs),  might  be  revived  by  a  scire  facias, 
85  N.  C.  268;  Auditor  v.  Halbert,  but  such  revival  gave  the  man- 
78  Ky.  577;  Peoria  Co.  (Board  damus  no  additional  force.  The 
Sup'rs)  v.  Gordon,  82  111.  435 ;  Smith  writ  was  allowed  to  go.  United 
v.  Bourbon  Co.  (Com'rs),  42  Kans.  States  v.  Ottawa  (Bd.  Aud.),  28  Fed. 
264.  Rep.  407.    The  fact  that  the  judg- 

3  George's  Creek,  etc.  Co.  v.  Co.  ment  could  be  revived  would  seem 
Com'rs,  59  Md.  255 ;  Territory  v.  to  render  the  statute  of  limitations 
Potts,  3  Mont  364.  inapplicable  to  the  case,  but  such 

4  Prescott  v.  Gonser,  34  Iowa,  175.  delay  in  applying  for  the  writ,  if 

5  United  States  v.  Oswego  (Tp.)  unexplained,  was  a  good  reason  for 
28  Fed.  Rep.  55.  In  another  case  refusing  the  writ  on  account  of 
the  court  decided  otherwise,  hold-  laches.  Where  there  was  no  right 
ing  that  the  law  limiting  the  issue  of    revival    by  scire  facias,  such. 


§  315.]  MISCELLANEOUS   PEIXCIPLES.  379 

after  the  application  for  the  writ  is  filed,  yet  the  writ  will 
be  refused,  since  the  filing  of  the  application  does  not 
create  a  lien.1  Even  though  the  statute  of  limitations  is 
not  recognized  as  having  any  application  to  this  writ,  yet 
the  courts  will  refuse  its  assistance,  when,  according  to 
their  judgment,  there  has  been  unreasonable  delay  in  ask- 
ing for  it,  when  such  delay  is  unexplained  and  unaccounted 
for.2  Since  statutes  of  limitation  generally  do  not  run 
against  the  government,  it  has  been  held  that  they  do  not 
apply  when  the  state,  by  its  attorney -general,  applies  for 
this  writ.3 

§  315.  Res  judicata  in  mandamus  proceedings.— A 
judgment  quashing  a  writ  of  mandamus,  because  it  is  in- 
formal or  defective  by  omission  of  necessary  parties  or  of 
some  material  fact,  or  because  it  does  not  disclose  a  case 
coming  within  the  legitimate  scope  of  the  writ,  is  not  con- 
clusive on  the  parties,  and  is  no  bar  to  a  subsequent  regular 
proceeding.4  So  where  a  peremptory  mandamus  was  is- 
sued to  restore  one  who  had  been  removed  from  office, 
because  the  return  was  defective,  it  was  held  not  to  pre- 
vent proceedings  de  novo  to  remove  the  relator  from  his 
office  for  his  prior  delinquency.5  The  result  of  mandamus 
proceedings  can  be  no  bar  to  subsequent  proceedings  on  the 
same  subject,  unless  there  has  been  an  adjudication  on  the 
merits.6  "When,  however,  a  mandamus  proceeding  has  been 
heard  and  decided  on  its  merits,  the  judgment  rendered  is 
conclusive  against  the  parties  thereto,  whether  the  issue 

right  having  expired  contempora-  Kansas  the  attorney-general  only 
neously  with  the  right  to  issue  an  appears  in  such  cases  when  public 
execution,  the  right  to  a  man-  interests  are  to  be  protected,  and 
damus  was  held  to  be  barred.  Stew-  not  when  private  interests  are  in- 
art  v.  St  Clair  Co.  Ct  (Just),  47  Fed.  volved. 

Rep.  482.  4  Tucker  v.  Iredell  (Just),  1  Jones, 

iMcAleer   v.   Clay  Co.,  42  Fed.  451;    State  v.    Milwaukee    Ch.   of 

Rep.  665.  Com.,  47  Wis.  670 ;  People  v.  Baker, 

2  People  v.  Chapin,  104  N.  Y.  96;  35  Barb.  105. 

Chinn  v.  Trustees,  32  Ohio  St.  236 ;        5  King  v.  Taylor,  3  Salk.  231. 
State  v.  Knight,  31  S.  C.  81.  6  State  v.  Stearns,  11  Neb.  104 

3  State  v.  Stock,  38  Kans.  154.    In 


380  MISCELLANEOUS   PKLNOIPLES.  [§  315. 

presented  was  one  of  law  or  fact,  in  any  other  proceeding, 
whether  it  be  legal  or  equitable  or  a  proceeding  by  man- 
damus, and  is  also  conclusive  as  to  all  matters  directly  in- 
volved and  determined  therein,  until  such  decision  has  been 
reversed  or  set  aside.1  So  a  mandamus  against  a  county  or 
its  legal  representatives  is  conclusive  against  a  bill  in  equity 
subsequently  filed  against  them,  as  to  all  matters  which 
could  have  been  set  up  in  the  mandamus  proceeding,  though 
the  bill  is  filed  by  other  inhabitants  of  the  county.2  When 
a  court  had  jurisdiction  of  the  parties  and  the  subject-mat- 
ter in  a  mandamus  proceeding,  its  judgment  therein  can- 
not be  attacked  collaterally.3 

1  State  v.   Ottinger,  43  Ohio  St  Washington  L  Co.  v.  Kansas  P.  R. 

457 ;  State  v.  Trammel  (Mo.,  Nov.  9,  R,  5  Dill.  489.     Contra,  Burland  v. 

1891),  17  S.  W.  Rep.  502 ;  State  v.  N.  W.  M.  B.  Assoc.,  47  Mich.  424 

Hard,   25  Minn.    460;    Tucker    v.  2  Sauls  v.  Freeman,  24  Fla.  209. 

Iredell  (Just),  1  Jones,  451;  Block  a  State  v.  Trammel  (Ma,  Nov.  9. 

v.  Com'rs,  99  U.  S.  686 ;  Louis  v.  1891),  17  S.  W.  Rep.  502. 
Brown  Township,  109  U.  S.   162; 


CHAPTEK  21. 

FORMS  IN  MANDAMUS  PROCEEDING& 

§  316.  Entitling  the  petition. 

317.  Form  of  the  body  of  the  petition. 

318.  Verification  of  the  petition. 

319.  Form  of  the  alternative  writ 

320.  Requirements  of  the  return. 

321.  Form  of  final  judgment 

322.  Illustrations  of  the  necessary  pleadings. 

§  316.  Entitling  the  petition. —  The  courts  have  been 
disposed  to  ignore  forms  in  the  pleadings  in  mandamus 
proceedings,  only  requiring  that  the  essential  facts  neces- 
sary should  in  some  way  be  stated,  no  matter  how  inform- 
ally. Owing  to  this  very  informality  it  seems  desirable  to 
give  some  examples  of  forms  which  have  met  the  approval 
of  the  courts. 

The  petition  may  be  entitled: 

1.  To  the  Honorable Court  of * 

Or, 

2.  Ex  parte  A.  B.  [the  petitioner]. 

To  the  Honorable Court  of ■. 

Or, 

3.  State  of ,  at  the  relation  of  A.  R, 

vs. 
CD. 

To  the  Honorable Court  of        > 

Or, 

4.  A.  B.,  Plaintiff,     ) 

vs.  [•  In  the Court  of , Term,  A.  D.  18—. 

C.  D.,  Defendant  ) 

To  the  Honorable Court  of . 

The  second  form  is  generally  used.  The  fourth  form  is 
proper  in  those  states  where  it  has  been  ruled  that  under 


382  FOEMS    IN    MANDAMUS    PROCEEDINGS.       [§§  317,  318. 

their  laws  requiring  all  suits  to  be  brought  in  the  name  of 
the  real  party  in  interest,  the  name  of  the  state  cannot 
be  used  by  a  private  relator.1  Of  course  when  the  prosecut- 
ing officer  institutes  the  proceedings,  the  name  of  the  state 
should  be  used.  The  third  form  is  the  one  suggested  by 
the  writer.2 

§  317.  Form  of  the  body  of  the  petition.—  The  body  of 
the  petition  should  read : 

The  petition  of  A.  B.  respectfully  showeth  that  [here  all  the  facts 
showing  the  duty  which  was  imposed  upon  the  respondent,  the  rights  of 
the  relator  in  the  matter,  the  demand  of  performance  and  the  respondent's 
refusal  to  perform,  or  the  facts  dispensing  with  a  demand  and  refusal 
should  be  stated]. 

Your  petitioner  therefore  prays  that  a  peremptory  mandamus  may  issue 
to  the  said  C.  D.  commanding  him  [here  state  the  duty  whose  perform- 
ance is  requested].3 

The  petition  should  be  signed  by  the  petitioner  or  by  his 
counsel. 

§  318.  Verification  of  the  petition. —  The  petition  must 
be  verified.     Such  affidavit  may  read : 

State  of ,  ) 

County  of .   j"63, 

A.  B.,  the  petitioner  above  named,  being  duly  sworn,  on  his  said  oath 

deposes  and  says  that  the  several  matters  and  things  in  the  foregoing 

petition  stated  are  true  in  substance  and  in  matter  of  fact,  to  the  best  of 

his  knowledge,  information  and  belief.4 

A.  B. 

Sworn  to  and  subscribed  before  me,  this day  of ,  A,  D.  18 — . 

[Officer's  name  and  title  of  office.] 

1  See  ante,  §  228.  pleadings  given  later  from  actual 

2  See  ante,  §  247.  cases.     The  writer  believes  that  the 

3  It  is  a  common  practice,  instead  pleader  should  ask  at  first  for  the 
of  asking  for  a  peremptory  writ  of  peremptory  writ,  the  order  actually 
mandamus,  to  ask  for  an  alternative  given  being  a  matter  in  the  discre- 
writ  requiring  the  respondent  to  do  tion  of  the  court  See  ante,  %  249. 
the  act  desired  or  to  show  cause  to  4  As  to  how  far  the  petitioner 
the  court  at  a  future  time  desig-  must  swear  to  the  absolute  truth  of 
nated  why  the  writ  has  not  been  the  matters  stated  in  his  petition, 
obeyed.    An  illustration  of  such  an  see  ante,  §  248. 

application  will  be  found  in  the 


§  319.]  FORMS    IN    MANDAMUS    PROCEEDINGS.  3S3 

§  319.  Form  of  the  alternative  writ.—  If  the  alterna- 
tive writ  is  granted,  being  an  order  of  court,  it  will  be  en- 
titled : 

1.  State  of to [the  respondent],  Greeting. 

Sometimes  the  name  of  the  case  is  put  above  the  order, 
when  the  writ  will  be  entitled  as  follows: 


In  the Court. 


2.  State  of ,  at  the  relation  of [the  pe- 
titioner}, 
vs. 

[the  respondent,  giving  his  official 

title  and  name,  or  omitting  his  name]. 
State  of to [the  respondent],  Greeting. 

The  body  of  the  writ  will  read : 

Whereas,  it  hath  been  related  to  the  court  [court  in  which  the 

matter  is  pending],  by  A.  B.  [the  relator]}  that  [here  insert  the  allega- 
tions of  the  petition  prior  to  the  mandatory  clause]:  Now,  therefore, 
being  willing  that  full  and  speedy  justice  should  be  done  in  the  premises, 
'we  do  command  you  that  [here  insert  the  mandatory  clause  of  tlie  peti- 
tion], or  that  you  show  cause  to  this  court,  at  its  session  at o'clock 

on  the day  of ,  A.  D.  18 — ,  at ,  why  you  have  not  done  so ; 

and  have  you  then  and  there  this  writ,  with  your  return  that  you  have 
done  as  you  are  are  hereby  commanded. 

The  writ  should  be  attested  in  the  manner  usual  with 
orders  emanating  from  that  court. 

Some  courts  have  adopted  the  following  form,  which  the 
writer  recommends  as  dispensing  with  all  trouble  in  pre- 
paring the  alternative  writ,  viz. : 

The  State  of to  A.  B.  [the  respondent],  Greeting : 

Whereas,  on  the day  of ,  A.  D.  18 — ,  there  was  filed,  and  on 

the day  of ,  A.  D.  18 — ,  presented  to    our court  of ,  a 

petition  praying  for  a  writ  of  mandamus,  which  petition  is  in  words  and 
figures  following,  to  wit : 

[Then  insert  tlie  petition  in  full,  including  the  caption  and  the  verifi- 
cation.] 

1  In  the  writ  it  is  not  the  practice  Pearson,  2  Scam.  189 ;  Drew  v.  Mc- 
to  state  the  facts  absolutely,  though  Lin,  16  Fla.  17 ;  State  v.  Lawrence, 
it  has  been  done.  Com.  v.  Pitts-  3  Kan.  95 ;  State  v.  Zanesville,  etc. 
burgh  (Councils),  34  Pa  St  496.  Co.,  16  Ohio  St  308 ;  Hawkins  v. 
The  ordinary  statement  is  that  it  More,  3  Ark.  345;  King  v.  Good- 
hath  been  represented,  related  or  rich,  3  Smith,  388 ;  State  v.  GolL  33 
suggested  to  the  court.    People  v  N.  J.  L  285. 


384  FOKMS    IN    MANDAMUS    PROCEEDINGS.       [§§  320-322. 

And  whereas,  upon  consideration,  it  was  ordered  that  an  alternative 
writ  of  mandamus  should  issue :  These  are  therefore  to  command  you 
[here  insert  the  prayer  of  the  mandatory  clause  of  the  petition],  or  to 

appear  before  this  court  on  the day  of  ,  A.  D.  18 — ,  at 

o'clock  A.  M.,  then  and  there  to  show  cause,  if  any  you  have,  why  you 
have  not  so  done. 

The  writ  should  then  be  attested  in  the  mode  adopted  in 
each  court  for  attesting  its  orders. 

§  320.  Requirements  of  the  return. —  The  return  should 

be  entitled  by  the  name  of  the  cause,  viz. : 

The  State  of ,  at  the  relation  of  A.  B.  [the  relator],  ) 

vs.  >  In  the Court 

C.  D.  [the  respondent,  giving  official  title].  ) 

The  return  differs  in  no  respect  from  the  answers  in  any 
civil  suit,  except  as  to  the  particularity  of  its  allegations, 
which  has  been  explained  before.1  All  motions  made  by 
the  respondent  or  by  the  relator  (at  least  after  the  court 
has  granted  the  alternative  writ)  must  be  entitled  of  the 
cause.2  The  return  should  be  signed  by  the  respondent  or 
by  his  counsel. 

§  321.  Form  of  final  judgment. —  If  upon  the  final  hear- 
ing the  peremptory  writ  is  refused,  the  judgment  is  that 
the  respondents  go  without  day  and  recover  of  petitioner 
their  costs.3  If  the  court  make  any  different  order  as  to 
costs,  the  judgment  will  be  void  accordingly.  If  the  per- 
emptory writ  issues,  it  issues  as  an  order  of  the  court,  com- 
manding the  performance  of  the  duties  ordered  in  the 
alternative  writ,  but  omitting  the  order  to  show  cause,  and 
directing  the  respondent,  at  a  period  named,  to  make  a  re- 
turn to  the  court,  showing  his  obedience  to  the  writ. 

§  322.  Illustrations  of  the  necessary  pleadings. —  To 
the  above  forms  it  is  deemed  expedient  to  add  the  plead- 
ings actually  filed  and  approved  by  the  courts  in  a  few  in- 
stances. It  should  be  premised,  however,  that  the  omission 
of  the  title  of  the  cause,  or  of  the  affidavit  of  the  petition, 
must  not  be  considered  to  be  evidence  that  none  such  ex- 
isted, since  where  no  issues  have  been  made  thereon,  the 
courts  find  it  unnecessary  to  notice  them. 

J  Ante,  §§  273-281.  2  See  §  247.  3  Ante,  §  292. 


§  322.]  FOKMS    IN    MANDAMUS    PROCEEDINGS.  385 

Petition. 

To  the  Honorable  the  Judge  of  the  Superior  Court  of  Law  in  and  for 
the  County  of  Iredell,  State  of  North  Carolina : 

The  petition  of  Samuel  Tucker  respectfully  showeth  to  your  honor, 
that,  at  the  November  session,  1847,  of  the  court  of  pleas  and  quarter 
sessions  for  the  county  aforesaid,  the  justices  thereof  made  an  order,  and 
caused  the  same  to  be  entered  of  record,  appointing  Henderson  Forsyth, 
Enos  Gaither  and  Alexander  Bailey  commissioners  to  let  and  contract 
for  the  building  of  a  bridge  over  the  South  Yadkin  river,  near  where 
Belt's  bridge  formerly  stood. 

Your  petitioner  further  showeth  that  the  said  commissioners,  in  the 
month  of  January,  1848,  contracted  with  your  petitioner  for  building 
said  bridge,  at  the  place  designated,  according  to  certain  written  specifi- 
cations, describing  and  establishing  with  great  particularity  the  kind  of 
a  bridge,  the  manner  of  building  it,  and  the  material  to  be  used  about 
the  same ;  that  the  said  commissioners  required  your  petitioner  to  sign 
specifications,  and  the  same  were  returned  to,  and  are  now  on  file  in  the 
office  of,  the  clerk  of  the  county  court,  and  that,  to  secure  the  perform- 
ance of  the  contract,  your  petitioner  was  required  to  and  did  execute  a 
bond,  with  good  security,  in  the  sum  of  two  thousand  dollars,  which 
said  bond  was  delivered  to  the  said  commissioners  for  and  in  behalf  of 
the  county  of  Iredell,  and  returned  to  the  court,  and  is  now  on  file  in  the 
clerk's  office. 

And  your  petitioner  further  showeth  that  the  said  Henderson  Forsyth. 
Enos  Gaither  and  Alexander  Bailey,  in  contracting  with  your  petitioner, 
only  acted  for  and  in  behalf  of  the  county,  and  by  virtue  of  their  appoint- 
ment as  commissioners  as  aforesaid  of  the  county  court. 

And  he  further  showeth  that  the  said  South  Yadkin  river,  at  the  place 
designated,  is  within  the  limits  of  Iredell  county,  and  within  the  juris- 
diction of  the  county  court. 

Your  petitioner  further  showeth,  that  it  was  contracted  by  the  com- 
missioners aforesaid  to  pay  your  petitioner  the  sum  of  seven  hundred 
and  ninety-nine  dollars  for  building  the  bridge  according  to  the  said 
specifications. 

Your  petitioner  further  showeth  that  he  soon  thereafter  went  to  work, 
and  employed  a  large  number  of  hands,  and,  in  as  substantial  and 
workmanlike  manner  as  the  specifications  would  admit,  built  and  com- 
pleted a  bridge,  which  in  every  respect  your  petitioner  avers  corre- 
sponded to  the  specifications  above  mentioned ;  that  in  all  things  he  per- 
formed his  contract  and  followed  the  said  specifications  as  his  guide. 
Your  petitioner  further  showeth  to  your  honor,  that  the  said  commis- 
sioners, after  viewing  and  examining  the  bridge  after  its  completion, 
entirely  approved  the  same,  and  made  their  report  to  the  November  ses- 
sion, 1848,  of  the  county  court,  stating  their  examination  and  approval, 
and  recommending  that  your  petitioner  be  paid  the  sum  of  seven  hun- 
25 


386  FORMS    IN    MANDAMUS   PROCEEDINGS.  [§  322. 

clred  and  ninety-nine  dollars,  according  to  agreement  (which  is  filed  as  an 
exhibit).  That  upon  the  presentation  of  said  report,  and  according  to  its 
recommendation,  the  justices  of  the  court,  at  the  said  November  session, 
1848,  made  an  order  directing  the  county  trustee  to  pay  to  your  peti- 
tioner the  sum  of  seven  hundred  and  ninety-nine  dollars  for  building 
the  bridge  as  aforesaid  contracted  for  and  completed  by  your  petitioner, 
a  copy  of  which  order,  marked  B.,  is  herewith  submitted  as  a  part  of  this 
petition.  Your  petitioner  further  showeth  to  your  honor,  that  said  bridge 
thereupon  was  opened  to  and  used  by  the  community  as  a  county  public 
bridge ;  and  your  petitioner  applied  to  the  county  trustee  for  his  pay ; 
that  said  trustee  deferred  payment  at  the  time  for  the  want  of  the  nec- 
essary county  funds  wherewith  to  discharge  the  same.  Your  petitioner 
further  showeth  to  your  honor,  that  after  said  bridge  had  been  used  by 
the  citizens  of  the  county  and  the  public  generally,  a  part  of  said  bridge 
fell  down,  not  because  of  any  deficiency  in  the  execution  of  the  work 
on  the  part  of  your  petitioner,  as  he  is  fully  convinced  and  satisfied,  but 
entirely  from  the  plan  of  the  bridge  itself,  as  prescribed  in  the  said  speci- 
fications, and  your  petitioner  shows  that  it  is  next  to  impossible  to  make 
a  permanent  bridge  on  the  plan  proposed  ;  fox  this  one  reason,  that  the 
pillars,  built  of  common  rough  rock,  without  mortar  or  cement,  and 
bounded  and  built  as  specified,  of  only  four  feet  base,  and  twenty  feet 
high,  and  three  feet  at  top,  are  not  calculated  to  stand  and  support  a 
bridge ;  that  your  petitioner  has  taken  the  opinion  of  an  intelligent  en- 
gineer upon  the  plan  of  the  pillars  and  bridge,  and  he  states,  unequivo- 
cally, that  such  a  structure  could  not  be  expected  to  stand.  And  your 
petitioner  shows  to  your  honor,  that  he  faithfully  and  to  the  best  of  his 
ability  performed  the  work  specified  by  the  county,  and  for  which  he 
and  the  justices  by  their  commissioners  contracted,  and  that  he  did  not 
contract  to  insure  the  work  to  be  permanent,  and  is  in  no  wise  responsi- 
ble for  defects  in  the  original  plan  of  the  work.  Your  petitioner  further 
showeth,  that  after  said  bridge  had  fallen  in  part,  the  justices  at  the  Feb- 
ruary term,  1849;  rescinded  their  former  order  of  payment,  and  have 
instructed  their  county  trustee  not  to  pay  your  petitioner.  Your  peti- 
tioner shows  to  your  honor,  that  he  has  repeatedly  demanded  his  money, 
and  sought  to  obtain  it,  but  his  demands  have  been  and  still  are  met  with 
positive  refusal ;  that,  having  performed  his  contract  according  to  his 
written  directions,  and  received  an  order  for  his  money,  he  is  now 
strictly  entitled  to  receive,  from  the  treasurer  of  the  county,  the  sum  of 
seven  hundred  and  ninety-nine  dollars,  with  interest  on  the  same  from 
the  17th  November,  1848,  until  the  same  be  paid ;  and,  as  he  can  have  no 
relief  in  the  premises,  save  by  the  extraordinary  process  of  mandamus, 
he  shows  that  he  is  entitled  to  the  same ;  that  he  learns  from  the  clerk 
of  the  county  court,  and  so  shows  to  your  honor,  that  the  following  are 
the  justices  of  the  peace  in  and  for  the  county  of  Iredell  (setting  them 
forth  at  large). 
Your  petitioner  therefore  prays  your  honor,  that  an  alternative  man- 


§  322.]  FORMS   IN   MANDAMUS   PROCEEDINGS.  387 

damus  may  issue  to  the  aforesaid  justices,  commanding  them  that  unless 
they  show  good  cause  to  the  contrary,  whenever  thereunto  required  by 
this  honorable  court,  they  pay  or  cause  to  be  paid,  by  the  officers  of  this 
county,  the  said  sum  of  seven  hundred  and  ninety-nine  dollars  with  in- 
terest thereon  from  the  said  17th  of  November,  1848;  that  upon  their 
failure  to  show  such  cause,  they  be  absolutely  and  peremptorily  com- 
manded by  this  honorable  court  to  pay  to  the  petitioner  the  afor-esaid 
sum  of  seven  hundred  and  ninety -nine  dollars  with  the  interest  thereon, 
as  aforesaid.  A.  and  B., 

Attorneys. 
North  Carolina,  ) 

Iredell  County.   ) 

Samuel  Tucker  maketh  oath  that  the  several  matters  of  fact  set  forth 
in  the  foregoing  petition  as  of  his  own  knowledge  are  true,  and  those  as 
not  of  his  own  knowledge  he  believes  to  be  true.        Samuel  Tucker. 

(Sworn  to  before  the  clerk  of  the  superior  court.) 

Return. 

To  the  Petition  of  Samuel  Tucker,  Praying  a  Mandamus  against  the  Jus- 
tices of  Iredell  County. 

They,  the  said  justices,  make  return,  and  for  cause  show  respectfully 
to  this  honorable  court  that  they,  from  the  best  of  their  knowledge  and 
belief,  in  refusing  the  payment  of  the  petitioner  as  alleged  in  his  petition, 
have  not  acted  in  bad  faith  or  unjustly  towards  him,  and  do  not  withhold 
from  him  a  debt  which  in  good  conscience  he  can  demand,  but  they 
have  acted  with  a  sole  regard  to  their  public  and  official  duty  to  the 
county,  and  from  a  desire  to  protect  it  from  an  unfounded  and  iniqui- 
tous claim.  They  say  it  is  true  that  at  the  November  term,  1817,  of  their 
county  court  they  made  the  order  mentioned  in  the  petition,  and  also  that 
the  petitioner  undertook  a  contract  to  build  a  bridge  on  the  South  Yad- 
kin river  according  to  specifications  in  writing  (the  substance  of  which 
is  set  forth  below). 

They  deny  that  the  petitioner  has  built  the  said  bridge  in  all  things  ac- 
cording to  his  contract  and  the  said  written  specifications.  They  repre- 
sent that,  from  the  best  of  their  knowledge  and  belief,  the  petitioner 
built  the  said  bridge  with  such  gross  negligence  and  wilful  unskilful- 
ness  that  it  is  of  no  public  utility  whatever ;  that  owing  to  the  frail  and 
insufficient  construction  of  the  work,  one  end  of  the  bridge  had  crushed 
the  abutment  upon  which  it  was  supported  before  the  petitioner  had  fin- 
ished his  woi-k;  and  in  less  than  two  months  afterwards,  the  other  end 
crushed  the  abutment  upon  which  it  was  supported  and  sunk  down,  and 
that  since  then  the  greater  part  of  the  bridge  has  been  carried  off  by  the 
waters  of  the  stream. 

These  defendants  show  that  in  the  petitioners  contract  it  is  specified 
that  "  the  face  wall  of  the  abutment  on  tho  south  side  of  the  river  was 
to  be  started  in  the  bottom  of  the  river  against  a  rock ;  to  be  four  feet 


3S8  FORMS    IN   MANDAMUS;  PROCEEDINGS.  [§  322. 

thick,  tapered  up  twenty  feet  high,  to  be  three  feet  thick  at  the  top  for 
the  cope ;  two  side  walls  to  be  started  fifteen  feet  from  outside  to  outside ; 
to  be  three  feet  thick  at  bottom,  tapered  to  two  feet  at  top,  and  the  space 
between  the  walls  to  be  filled  with  rock  and  dirt  to  settle  them  ;  and  the 
abutment  on  the  north  side  of  the  river  to  start  forty-eight  feet  in  the 
river,  and  to  be  constructed  as  the  abutment  of  the  south  side."  And 
they  represent,  from  the  best  of  their  information  and  belief,  that  the 
face  walls  and  side  walls  of  the  abutments  were  not  built  as  specified  in 
the  terms  of  the  contract,  but  that  stone,  without  regard  to  their  fitness 
in  size  or  form,  were  so  laid  as  fraudulently  to  present  the  face  of  the 
wall,  when  in  truth,  what  represented  walls  were  of  unequal  thickness 
and  of  a  single  stone,  and  varying  with  the  size  of  the  stone ;  and  instead 
of  rock  and  dirt  the  abutments  were  filled  in  with  loose  sand.  These 
constructions  started  in  water,  from  foundations  loosely  placed  in  the 
mud  and  sand,  instead  of  at  the  bottom  of  the  river  against  the  rock,  and 
were  raised  on  one  side  of  the  river  to  the  height  of  twenty  feet.  These 
defendants  represent,  from  the  best  of  their  information  and  belief,  that 
these  pretended  walls,  in  many  parts,  did  not  exceed  a  foot  in  thickness, 
and  were  so  frail  as  to  be  totally  inadequate  for  the  support  of  the  bridge, 
and  for  this  cause  they  crushed  and  the  bridge  sank  down  and  was  ren- 
dered impassable  and  useless.  They  further  represent,  from  their  in- 
formation and  belief,  that  the  timbers  used  in  the  construction  of  the 
said  bridge  were  not  such  as  are  specified  in  the  terms  of  the  contract ;  — 
were  not  all  of  heart  timber,  but  large  portions  of  material  pieces  were 
white  pine  or  sap  wood.  The  defendants  show  that  the  petitioner,  in 
the  several  particulars  mentioned  as  well  as  others,  has  violated  the  terms 
of  his  contract  for  building  said  bridge,  and  has  no  just  demand  for  the 
payment  of  the  stipulated  price.  The  defendants  show  that  the  said 
bridge  fell  down  and  became  useless  from  the  deficiency  of  the  execution 
of  the  work  by  the  petitioner,  and  that  it  was  not  because  of  any  defect 
in  the  plan  of  said  bridge  as  contained  in  said  specifications.  Defendants 
further  show  that  it  is  true  that  two  of  the  commissioners  appointed  by 
them  to  make  the  contract  for  the  building  of  said  bridge  did  represent 
to  them  in  writing  that  said  contract  was  completed  according  to  agree- 
ment, but  such  representation  was  untrue.  The  petitioner  and  the  said 
commissioners  knew  at  the  time  it  was  made  that  it  was  untrue ;  they 
were  all  fully  aware  that  the  bridge  in  its  construction  was  deficient  in 
the  particulars  hereinbefore  alleged,  and  that  it  was  of  little  or  no  use  to 
the  public.  These  defendants  are  informed  and  believe  that  the  said 
commissioners,  before  they  would  agree  to  make  the  said  fraudulent  rep- 
resentation to  the  justices  concerning  the  structure  of  said  bridge,  know- 
ing it  to  be  frail  and  wholly  insufficient,  required  the  petitioner  to  put  a 
wooden  pillar,  consisting  of  two  wooden  posts,  upright  under  the  main 
wooden  structure  of  the  bridge  to  support  it,  and  that  said  bridge  was  in 
this  condition  supported  by  such  wooden  posts  when  they  made  the  afore- 


§  322.]  FOKMS    IN    MANDAMUS   PK0CEEDING8.  389 

said  representation  to  the  defendants.    The  defendants  believe  and  say 
that,  with  a  knowledge  that  petitioner  had  not  performed  his  contract, 
these  commissioners  with  him  fraudulently  confederated  to  procure  from 
these  defendants  an  order  for  the  payment  of  the  stipulated  price  of  the 
work,  and  in  pursuance  of  this  design  they  falsely  made  the  above-men- 
tioned representation,  by  which  the  defendants  were  misguided  and  de- 
ceived, and  induced  to  make  an  order  directing  the  county  trustees  to 
pay  the  stipulated  money.     The  defendants  believe  and  represent  that 
the  said  certificate  of  the  commissioners  was  advised,  counseled  and  ap- 
proved by  the  petitioner  with  a  perfect  knowledge  on  his  part  that  the 
contract  for  building  said  bridge  had  not  been  substantially  performed, 
and  with  the  design  of  fraudulently  taking  and  receiving  money  from 
the  county  without  any  just  title  to  demand  it     These  defendants  state 
that  at  the  next  term  of  their  county  court  they  rescinded  the  aforesaid 
order  (it  being  the  first  opportunity  they  had  of  so  doing  after  learning 
that  they  had  been  imposed  upon  by  the  petitioner),  and  that  said  defend- 
ants believed  at  the  time,  and  they  still  believe,  that  they  had  power  and 
authority  in  law  so  to  rescind  their  own  order.     These  defendants  state 
that  they  are  not  informed  that  any  surrender  of  the  bridge  was  made 
to  them  or  the  public  by  the  petitioner,  nor  have  they  surrendered  or 
dedicated  it  to  the  public  use  by  any  special  act  of  their  own;  nor  have 
they  any  knowledge  or  belief  that  the  aforesaid  commissioners  accepted 
it,  except  as  the  above-mentioned  certificate  may  be  evidence  of  accept- 
ance. _  . 

E.  P.  and  L.  R,  for  Defendants. 

Personally  appeared  Thomas  A.  Allison,  one  of  the  defendants,  in  be- 
half of  all  the  justices  of  the  county  of  Iredell,  and  maketh  oath  that  the 
several  matters  which  are  set  forth  in  the  foregoing  return  as  of  their 
own  knowledge  are  true,  and  those  not  set  forth  as  of  their  own  knowl- 
edge are  true  to  the  best  of  their  understanding  and  belief. 

Thomas  A.  Allison. 
Sworn  to  in  open  court. 

W.  H.  HayneS,  Clerk.* 

Petition. 

To  the  Honorable  the  Justices  of  the  Supreme  Court  of  the  United  States : 
The  petition  of  the  Union  Bank  of  Louisiana,  a  corporation  duly  estab- 
lished by  the  laws  of  the  state  of  Louisiana,  respectfully  showeth :  That 
on  the  5th  day  of  March,  1848,  your  petitioner  filed  its  bill  in  the  district 
court  of  the  United  States  for  the  district  of  Texas  against  Josiah  S.  Staf- 
ford and  Jeannette  Kirkland  Stafford,  his  wife,  whereby  your  petitioner 
sought  to  obtain  a  foreclosure  of  a  certain  mortgage,  held  by  it  on  cer- 

i  The  above  petition  and  return    considered  that  they  might  be  used 
are  taken  from  Tucker  v.  Iredell    as  models. 
(Justices),  1  Jones,  451,  and  the  court 


390  FOKMS   IN   MANDAMUS    PROCEEDINGS.  [§  322. 

tain  negro  slaves,  then  in  the  possession  of  the  said  defendants ;  but,  at 
the  hearing  in  the  said  court,  and  by  the  decree  thereof,  the  said  bill  was 
dismissed.  And  your  petitioner  further  showeth  that  from  the  decree 
of  the  said  court,  directing  the  dismissal  of  the  said  bill,  an  appeal  was 
prayed  by  your  petitioner  to  this  court ;  and  at  the  December  term.  1851, 
the  said  decree  was  reversed  and  the  cause  remanded  to  the  said  district 
court,  with  directions  to  that  court  to  enter  a  decree  in  favor  of  your 
petitioner ;  and,  accordingly,  such  a  decree  was  in  fact  rendered  by  the 
said  district  court,  on  the  25th  of  February,  1854,  whereby  it  was  in  sub- 
stance directed  that  the  sums  accruing  from  the  hire  of  the  mortgaged 
slaves,  while  in  the  custody  of  the  receiver,  pendente  lite,  amounting  to 
$25>379.39,  should  be  paid  by  the  receiver  to  the  complainant,  and  cred- 
ited on  the  total  amount  found  to  be  due  by  the  defendants,  and  that  in 
case  the  defendants  failed  to  pay  over  the  balance  remaining  due  after 
such  credit,  amounting  to  $39,877.13  on  the  1st  day  of  July,  1854,  they 
should  be  foreclosed  of  their  equity  of  redemption,  and  the  marshal 
should  seize  and  sell  the  mortgaged  slaves  at  public  auction  on  the  third 
day  of  the  same  month,  or  as  soon  thereafter  as  may  be,  after  giving 
three  months'  notice,  by  advertisement,  of  the  time,  place  and  terms  of 
sale,  and  should  pay  to  the  complainant,  your  petitioner,  out  of  the  pro- 
ceeds of  such  sale,  the  aforesaid  sum  of  $39,877.13,  in  satisfaction  of  the 
debt  accrued  by  the  said  mortgage.  And  your  petitioner  further  showeth 
that,  although  it  appeared  by  the  said  decree  that  the  total  amount  due 
thereby  to  your  petitioner  was  the  sum  of  $65,256.52,  yet  the  said  district 
court  thereafter,  to  wit,  on  the  7th  day  of  March,  1854.  in  violation  of  the 
statutes  of  the  United  States,  and  of  the  right  of  your  petitioner,  allowed 
the  said  defendants  to  take  an  appeal  from  the  said  decree  to  this  court, 
which  should  act  as  a  supersedeas,  upon  their  giving  a  bond  in  the  penal 
sum  of  $10,000  alone,  conditioned  that  they  prosecute  their  said  appeal 
with  effect,  and  answer  all  damages  and  costs  if  they  fail  to  make  their 
plea  good ;  and  when  the  said  defendants  had,  on  the  day  aforesaid,  ten- 
dered such  a  bond  with  certain  sureties  thereon  named,  the  said  district 
court  ordered,  notwithstanding  the  objections  interposed  on  the  part  of 
your  petitioner,  that  the  bond  of  appeal,  so  taken  and  filed,  operates  as 
a  supersedeas  to  the  decree  of  the  said  court  hereinbefore  set  forth,  all  of 
which  will  fully  appear  by  reference  to  the  transcript  of  the  record  of 
the  said  cause,  brought  up  to  this  court  on  the  first  appeal,  and  to  the 
transcript  of  the  subsequent  proceedings  in  the  said  cause,  filed  in  this 
court  in  support  of  a  motion  made  on  the  part  of  your  petitioner,  at  the 
present  term,  to  dismiss  the  said  second  appeal,  taken  as  aforesaid,  by  the 
said  defendants. 

And  your  petitioner  further  showeth,  that  the  action  of  the  said  district 
court,  in  ordering  it  to  be  entered  that  the  appeal  bond  so  taken  operates 
as  a  supersedeas  and  stays  the  execution  of  the  said  decree,  is  contrary 
to  law  and  oppressive  to  your  petitioner;  that  unless  this  court  interpose, 
a  delay  of  one  or  two  years  must  intervene  before  the  decree  can  be  car- 


§  322.]  FORMS   IN    MANDAMUS    PROCEEDINGS.  391 

ried  into  effect ;  and,  meanwhile,  the  security  for  the  final  payment  of 
the  amount  decreed  to  be  due  and  payable  to  your  petitioner  is  wholly 
insufficient,  and  much  less  than  the  amount  required  by  law,  and  that 
your  petitioner  has  no  remedy  save  in  the  present  application  to  this 

court 

"Wherefore  your  petitioner  humbly  prayeth  that  your  honors  would  be 
pleased  to  order  that  a  writ  of  mandamus,  in  due  form,  be  at  once  issued 
from  this  court,  returnable  to  the  first  Friday  of  the  next  term  thereof, 
commanding  and  requiring  the  Honorable  John  C.  Watrous,  judge  of  the 
district  court  of  the  United  States  for  the  district  of  Texas,  to  cause  the 
decree,  so  as  aforesaid  rendered  by  the  said  court,  on  the  25th  day  of 
February,  1854,  to  be  at  once  carried  into  execution,  according  to  the 
terms  thereof,  notwithstanding  the  appeal  so  taken  by  the  said  defend- 
ants, or,  on  failure  thereof,  to  show  to  this  court,  on  the  said  return  day, 
why  the  same  has  not  been  done. 

And  in  support  of  this  petition  your  petitioner  refers  to  the  transcripts 
hereinbefore  mentioned,  and  to  the  records  of  this  court  in  relation  to 
the  said  cause,  and  will  ever  pray,  etc.  A.  B., 

W.  R, 
For  the  Union  Bank  of  Louisiana. 

Answer. 

The  United  States  of  America,  in  the  Supreme  Court,  December  Term, 

1854. 

Between  Josiah  S.  Stafford  and  Jeannette  K,  his  wife,  appellants,  and 
the  Union  Bank  of  Louisiana,  appellee. 

The  answer  of  John  C.  Watrous,  judge  of  the  district  court  of  the 
district  of  Texas  at  Galveston,  to  the  rule  upon  him  to  show  cause  why 
a  peremptory  mandamus  should  not  issue,  commanding  him  in  said 
court  to  discharge  the  supersedeas  to  the  enforcement  of,  and  to  order 
execution  upon  the  decree  rendered  in  said  court,  in  favor  of  the  said 
Union  Bank  of  Louisiana,  and  against  said  Josiah  S.  Stafford  and  wife. 
The  respondent  respectfully  answers  and  certifies  to  the  honorable  the 
supreme  court  of  the  United  States,  that  on  the  6th  day  of  March,  1854, 
in  the  district  court  of  the  United  States  for  the  district  of  Texas  at  Gal- 
veston, which  was  within  ten  days  next  after  the  rendition  of  the  decree 
mentioned  in  the  caption  to  this  answer,  the  said  Josiah  S.  Stafford  and 
wife,  feeling  themselves  aggrieved  by  the  rendition  of  the  s.ame,  in  open 
court  applied  for  and  prayed  an  appeal  to  the  next  term  thereafter  of 
this  court,  to  be  held  in  the  city  of  Washington  on  the  first  Monday  in 
December  thereafter,  which  to  them  was  granted  upon  condition  that 
they  entered  into  good  and  sufficient  bond,  with  good  and  sufficient  se- 
curity, in  the  sum  of  $10,000,  conditioned  that  they  prosecute  their  appeal 
with  effect,  and  answer  all  damages  and  costs  if  they  should  fail  to  make 
their  plea  good,  and  therefore,  on  the  same  day  and  year  aforesaid,  the 


302  FOKMS    IN   MANDAMUS   PROCEEDINGS.  [§  322. 

said  Josiah  S.  Stafford  and  wife  in  open  court  tendered  a  bond,  with 
L.  C.  Stanley,  Patrick  Kelly  and  William  H.  Clark  as  sureties,  in  the  sum 
of  $10,000,  and  the  court,  having  inspected  the  bond,  and  being  satisfied 
that  it  was  in  conformity  to  law  and  the  order  of  the  court,  and  that  the 
sureties  were  good  and  sufficient,  "it  was  ordered  that  the  bond  be  ap- 
proved, and  it  was  ordered  to  be  entered  that  the  bond  of  April,  taken 
and  filed  in  this  cause,  operates  as  a  supersedeas  to  the  decree  of 
the  court,"  and  thereupon,  and  immediately  after  the  order  granting 
said  appeal  and  the  giving  bond  as  aforesaid,  and  while  the  same  re- 
mained in  full  force,  unreversed  and  not  set  aside,  this  respondent 
respectfully  submits  that,  neither  in  the  said  district  court  or  in  vaca- 
tion, had  he  any  longer  jurisdiction  over  the  cause  between  the  parties 
aforesaid,  or  any  power  or  authority  to  make  any  order  in  regard  to  the 
supersedeas,  or  to  enforce  the  execution  of  the  decree  aforesaid,  for  the 
reason  that  thenceforward,  by  virtue  of  the  appeal  so  taken  and  per- 
fected as  aforesaid,  the  said  cause  between  the  parties  aforesaid  had  passed 
into  and  under  the  control  of  this  court,  and  which  was  the  proper  forum 
only  in  which  any  such  order  could  or  can  be  rightly  made. 

This  respondent  further  respectfully  submits  that,  though  upon  inves- 
tigation it  should  turn  out  that  the  bond  given  for  the  appeal  as  aforesaid 
was  not  taken  in  all  respects  in  conformity  to  the  requirements  of  the 
law,  but  might  be  irregular  and  depart  from  such  requirements  in  re- 
gard to  the  amount  of  the  penalty  thereof  or  in  other  respects,  yet  this 
did  not  render  the  grant  of  the  appeal  merely  void,  or  in  any  manner 
affect  the  supersedeas  operated  by  law,  but  that  the  said  appeal  and  the 
said  supersedeas  was,  and  continued  to  be,  in  full  force  and  effect,  and 
thus  will  remain  until  this  court,  in  conformity  to  its  practice,  shall  dis- 
miss said  appeal,  and  thereby  discharge  said  supersedeas  on  account  of 
a  failure  by  the  said  Josiah  S.  Stafford  and  wife,  when  thereunto  re- 
quired, to  give  such  bond  as  the  law  requires  within  such  time  as  the 
court  may  prescribe. 

This  respondent  further  respectfully  submits,  that  the  bond  taken  and 
approved,  and  upon  which  the  appeal  before  mentioned  was  granted, 
was  taken  and  executed  in  full,  complete  and  perfect  conformity  to  law, 
and  had  he  power  and  authority,  either  in  term  time  or  vacation,  to  make 
any  order  in  regard  to  said  supersedeas  or  the  enforcement  of  the  decree 
aforesaid  by  execution,  and  an  application  were  made  to  him  for  such 
order,  by  reason  of  the  said  bond  not  being  in  the  penalty  or  to  the 
amount  required  by  law,  he  would  feel  himself  constrained  to  refuse 
any  such  order. 

And  these  are  the  causes  and  reasons  which  this  respondent  has  to 
offer  why  a  mandamus  should  not  issue  to  enforce  a  discharge  of  the 
supersedeas  or  an  execution  of  the  decree  aforesaid. 

But  he  respectfully  submits  to  the  judgment  of  the  court,  and  will  en- 
force by  order  any  direction  given  by  the  court  in  the  premises.  The 
respondent  respectfully  refers  to  the  brief  of  the  counsel  of  the  said 


§  322.]  FORMS    IN    MANDAMUS    PROCEEDINGS.  393 

Josiah  S.  Stafford  and  wife,  which  will  be  filed  in  this  honorable  court 
and  the  authorities  therein  referred  to,  in  support  and  maintenance  of 
the  position  assumed  by  this  answer.  John  C.  Watrous.1 

Alternative  Writ  of  Mandamus. 
New  Jersey,  ss.—  The  State  of  New  Jersey  to  James  E.  Goll,  greeting : 

Whereas,  it  has  lately  been  represented  to  our  justices  of  our  supreme 
court  of  judicature,  on  the  part  and  behalf  of  the  Newark  &  New  York 
Railroad  Company,  that  you,  the  said  James  E.  Goll,  were  by  the  cor- 
porators of  the  said  the  Newark  &  New  York  Railroad  Company,  soon 
after  the  passage  of  the  act  entitled  "  An  act  to  incorporate  the  Newark 
&  New  York  Railroad  Company,"  approved  March  1,  1866,  appointed 
secretary  of  said  corporators,  and  that  you,  the  said  James  E.  Goll,  con- 
tinued to  act  as  such  secretary  until  a  board  of  directors  of  said  com- 
pany was  duly  elected  by  the  stockholders  thereof,  and  duly  organized, 
to  wit,  on  the  first  day  of  June  last;  and  that  you,  the  said  James  E  Goll, 
before  and  at  the  said  time  of  the  organization  of  the  said  board  of  di- 
rectors of  the  said  company,  held  in  your  hands  certain  books,  records 
and  papers  belonging  to  the  said  company,  consisting,  amongst  others,  of 
the  books  of  minutes  of  the  proceedings  of  the  said  corporation  and 
stockholders  and  directors,  and  the  subscription  book,  containing  the 
signatures  of  the  subscribers  to  the  capital  stock  of  said  company,  and 
their  subscriptions  to  said  stock,  and  the  receipt  books  of  the  said  com- 
pany ;  that  you,  the  said  James  E.  Goll,  after  the  organization  of  said 
board  of  directors  of  said  company,  refused  to  deliver  up  the  said  books, 
records  and  papers  to  the  said  company,  and  that  from  that  time  to  the 
present  time  you  have  kept  the  said  books,  records  and  papers,  and  have 
refused  to  deliver  them  up,  and  still  keep  them,  and  refused  to  deliver 
them  to  the  said  company,  or  their  board  of  directors,  although  the  same 
have  been  demanded  of  you  by  the  said  company ;  and  that  you,  the  said 
James  E.  Goll,  also  refuse  to  disclose  or  inform  the  said  company  where 
you  have  placed  the  said  books,  records  and  papers,  and  where  you  keep 
the  same,  although  the  said  company  have  frequently,  by  their  officers, 
requested  you,  the  said  James  E.  Goll,  to  inform  them  where  the  same 
are  kept  by  you ;  whereupon,  we  being  willing  that  due  and  speedy  jus- 
tice should  be  done  in  the  premises,  do  command  you,  that  immediately 
after  receiving  this  our  writ,  you,  the  said  James  E.  Goll,  do  deliver  up 
to  the  said  the  Newark  &  New  York  Railroad  Company,  the  said  books, 
record  and  papers  of  the  said  company,  or  that  you  show  cause  in  our 
supreme  court  of  judicature,  before  our  said  justices  thereof,  on  the 
fourth  Tuesday  of  February  next,  why  you  have  not  done  the  same. 

Witness,  Mercer  Beasley,  Esq.,  our  chief  justice,  at  Trenton,  the  twenty- 
sixth  day  of  November,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  sixty-six.  Chas.  P.  Smith,  Clerk. 

i  The  above  petition  and  answer  are  found  in  Stafford  v.  Union  Bank 
of  Louisiana,  17  How.  275. 


394  forms  in  mandamus  proceedings.  [§  322. 

Return. 

To  the  Honorable  the  Justices  of  the  Supreme  Court  of  Judicature  of 
the  State  of  New  Jersey : 

James  E.  Goll,  of  the  city  of  Newark,  for  return  to  the  writ  of  alter- 
native mandamus  heretofore  issued  by  this  court  against  him  on  appli- 
cation made  by  "  The  Newark  &  New  York  Railroad  Company,"  says : 

That  it  is  true  that  he  was  duly  appointed  secretary  of  said  company, 
to  wit,  on  the  sixth  day  of  March,  one  thousand  eight  hundred  and  sixty- 
six,  and  that  he  acted  as  such  secretary  from  that  time  until  the  fifteenth 
day  of  May  in  the  same  year,  but  denies  that  he  hath  or  ever  held  in  his 
hands  any  books,  records  or  papers  belonging  to  said  company,  contain- 
ing the  minutes  of  the  proceedings  of  the  meetings  of  said  corporators 
of  said  company,  or  of  its  stockholders  or  directors,  or  any  book  belonging 
to  said  company,  containing  the  signatures  of  the  subscribers  to  the  cap- 
ital stock  of  said  company,  and  the  receipt  books  of  the  said  company. 
He  admits  that  he  has  in  his  possession  books,  one  in  which  he  hath 
himself  written  the  minutes  of  the  proceedings  of  the  meeting  of  the 
6aid  corporators,  and  of  the  same  stockholders  and  directors,  and  another 
in  which  are  contained  the  signatures  of  the  subscribers  to  the  capital 
stock  of  said  company,  and  their  subscription  to  said  stock,  and  the  re- 
ceipt books  of  said  company ;  but  the  respondent  says  that  each  of  these 
books  is  his  own  property —  was  purchased  by  him  with  his  own  money, 
and  that  he  has  expended  in  said  purchase  the  sum  of  one  hundred  and 
fifty  dollars;  and  further,  the  respondent  says,  that  even  if  the  said 
company  had  a  right  to  said  books,  or  any  of  them,  which  he  denies,  he 
hath  a  right  to  the  custody  and  possession  thereof,  as  security  to  himself 
for  certain  moneys  due  him  from  said  company,  to  wit,  for  the  cost  of 
said  books,  one  hundred  and  fifty  dollars ;  for  this  deponent's  services  as 
secretary  the  sum  of  seven  hundred  and  fifty  dollars ;  for  use  and  occu- 
pation of  respondent's  premises  by  said  corporators,  directors  and  stock- 
holders, the  sum  of  one  hundred  dollars.  And  the  respondent  insists 
that  until  he  is  paid  what  is  due  him  as  aforesaid,  he  cannot  legally  be 
required  to  deliver  up  said  books. 

And  this  respondent  further  says,  that  the  said  company  had  no  right 
to  a  writ  of  mandamus  in  this  matter,  because  there  is  a  sufficient  rem- 
edy against  this  respondent  for  any  wrong  he  has  done  said  company 
otherwise,  either  by  writ  of  replevin,  action  in  trover  or  bill  of  discovery 
in  equity,  to  answer  all  or  any  of  which  respondent  is  fully  capable 
pecuniarily. 

And  this  respondent  prays  that  such  order  may  be  made  in  the  prem- 
ises as  is  lawful  and  right,  and  that  the  respondent  may  be  hence  dis- 
missed with  his  reasonable  costs  most  wrongfully  sustained.1 

February  26,  1867.  James  E.  Goll. 

1  The  above  written  alternative  thereto  are  found  in  State  v.  Goll, 
writ   of    mandamus   and    answer    32  N.  J.  L.  285.    The  answer  was 


§  322.j  fokms  in  mandamus  proceedings.  395 

Petition. 

Your  petitioner,  Rowland  E.  Evans,  sufficiently  shows  to  this  court 
and  states  that  on  the  1st  day  of  June,  A.  D.  1863,  he  was,  and  for  a 
long  time  previously  thereto  had  been,  a  member  of  the  Philadelphia 
Club,  which  was  incorporated  by  an  act  of  assembly  of  this  common- 
wealth, approved  the  9th  day  of  May,  1850,  under  the  name  of  the  Phila- 
delphia Association  and  Reading  Room,  with  authority  to  elect  officers, 
to  establish  by-laws  for  their  government,  and  that  the  name  of  the  said 
corporation  was  subsequent  to  such  incorporation  changed  to  the  Phila- 
delphia Club ;  that  he  was  many  years  ago  duly  made  a  member  of  the 
said  corporation,  and  that  he  has  always  since  his  becoming  a  member 
as  aforesaid,  until  the  time  of  the  grievance  hereinafter  complained  of, 
enjoyed  the  benefits  and  exercised  the  privileges  of  such  membership,  and 
has  committed  no  act  by  reason  of  which  he  could  justly  be  deprived  of 
his  said  membership. 

That  the  said  corporation  owns  certain  real  estate,  consisting  of  a  lot  of 
ground  in  the  city  of  Philadelphia,  in  the  state  of  Pennsylvania,  whereon 
is  a  building  used  as  a  club-house  by  the  said  corporation. 

That  on  or  about  the  9th  day  of  May,  1863,  he  received  a  private  notice 
stating  that  a  special  meeting  of  the  said  corporation  would  be  held  on 
the  1st  day  of  June  then  next,  to  take  into  consideration  the  circum- 
stances of  an  alleged  violation  by  Rowland  E.  Evans  of  his  duty  as  a  cor- 
porator, by  being  guilty  of  disorderly  conduct  within  the  walls  of  the 
club,  in  offering  a  blow  to  Samuel  B.  Thomas,  one  of  its  members,  on  the 
evening  of  the  24th  of  February.  1863,  and  the  propriety  of  expelling 
the  said  Rowland  E.  Evans  from  his  membership  of  the  club,  he  having 
been  heretofore,  to  wit,  on  the  7th  of  March,  1883,  requested  by  the  board 
of  directors  to  resign  from  the  club  by  reason  of  such  conduct,  and  hav- 
ing thereupon  refused  so  to  do.  By  order  of  the  board  of  directors,  and 
signed  M.  Edward  Rogers,  secretary. 

That  at  a  meeting  so  held  on  the  1st  day  of  June,  1863,  certain  proceed- 
ings were  had  by  which  a  certain  number  of  the  persons  then  and  there 
present  undertook  to  pass  and  passed  a  resolution  to  expel  him  from  his 
membership  of  the  said  club,  and  to  deprive  him  of  his  rights  as  a  mem- 
ber and  corporator  thereof,  and  that  he  was  subsequent!}'  notified  by  the 
said  corporation,  by  some  one  professing  to  act  in  its  behalf,  of  his  said 
expulsion  or  attempted  expulsion  and  deprivation  of  membership  in  said 
corporation. 

That  by  reason  of  the  premises  his  said  attempted  expulsion  and  dep- 
rivation was  unjust,  illegal  and  contrary  to  the  rules  and  laws  by  which 
corporations  are  governed  and  controlled,  and  that  he  has  been  greatly 

adjudged  insufficient,  since  by  their    turn  was  granted  and  a  peremptory 
use  the  books  had  became  the  prop-    writ  was  issued, 
erty  of  the  corporation,  and  the  re- 


396  FORMS    IN    MANDAMUS   PROCEEDINGS.  [§  322. 

wronged  and  injured  in  being  deprived  of  his  rights  of  membership  of 
the  said  corporation  as  aforesaid. 

Wherefore  your  petitioner  prays  for  a  writ  of  mandamus  to  be  directed 
to  the  said  The  Philadelphia  Club,  commanding  it  forthwith  to  restore 
him  to  the  exercise  of  his  rights  of  a  member  and  corporator  of  the  said 
corporation,  or  to  show  cause,  if  any  it  has,  why  he  should  not  be  restored 
to  his  rights  as  aforesaid. 

Return. 

Now  comes  the  respondent,  The  Philadelphia  Club,  and  files  this  its 
return  to  the  petition  of  the  relator  herein. 

The  respondent  admits  that  it  was  incorporated,  and  that  it  has  since 
changed  its  name  as  stated  in  the  petition  of  the  relator. 

The  respondent  further  alleges  that  it  had  established  certain  by-laws 
for  its  internal  discipline  and  for  regulating  the  intercourse  of  its  mem- 
bers, which  said  by-laws  were  in  force  at  the  times  hereinafter  men- 
tioned. 

That  said  by-laws  provided  that  the  affairs  of  the  said  corporation 
should  be  managed  by  a  board  of  directors  consisting  of  the  president 
and  six  directors,  who  should  be  elected  at  the  stated  meeting  in  April  in 
every  year,  who  should  have  and  exercise  a  general  superintendence  of 
the  affairs  of  the  corporation,  control  and  manage  its  property  and 
effects  and  enforce  the  preservation  of  order  and  obedience  to  the  rules. 

That  the  said  by-laws  provided  that  if  the  conduct  of  a  member  should 
be  disorderly  or  injurious  to  the  interest  of  the  club  or  contrary  to  its 
by-laws,  the  board  should  inform  him  thereof  in  writing,  and,  if  the 
nature  of  the  offense  require  it,  should  request  him  to  resign  ;  and  that 
should  such  information  or  request  be  disregarded,  the  board  should  refer 
the  matter  to  the  next  stated  meeting  of  the  club,  or  to  a  special  meeting 
to  be  called  for  the  purpose,  of  which  due  notice  should  be  given  to  the 
offending  member ;  at  which  meeting  the  circumstances  of  the  case  should 
be  considered  and  the  member  might  be  expelled. 

That  the  sixty-eighth  by-law  provided  that  the  board  of  directors,  by  a 
unanimous  vote  by  ballot  of  all  its  members,  might  expel  a  member  of 
the  club  for  an  infraction  of  either  of  the  by-laws  numbered  28,  58  and 
73,  or  for  intentional  violation  of  the  by-laws  relating  to  the  ballot,  or  for 
other  gross  misconduct,  immediate  notice  of  which  expulsion  should  be 
given  him.  Such  expulsion  should  be  final  unless  reversed  by  a  special 
meeting  of  the  club,  which,  at  the  written  request  of  the  member  so  ex- 
pelled, made  within  thirty  days  thereafter,  should  be  called  by  the  board. 
A  copy  of  the  notice  of  the  said  meeting  should  be  sent  to  the  offender, 
who  should  have  the  right  to  be  present  and  to  be  heard  thereat. 

That  the  thirty-ninth  by-law  provided  that  all  interest  in  the  property 
of  the  club,  of  members  resigning,  or  otherwise  ceasing  to  be  members, 
should  be  vested  in  the  club. 


§  322.]  FORMS    IN    MANDAMUS    PROCEEDINGS.  397 

That  the  by-laws  regulating  meetings  of  the  club  were  and  are,  so  far 
as  respects  the  present  case,  as  follows : 

The  fourteenth  provided  that  notice  of  any  meeting  of  the  club, 
whether  stated  or  special,  should  be  posted  upon  the  notice  board  at 
least  ten  days  before  the  time  assigned  for  such  meeting. 

The  fifteenth  provided  that  it  should  be  the  duty  of  the  board  to  call  a 
special  meeting  of  the  club  upon  the  written  request  of  ten  members, 
and  such  a  meeting  might  also  be  called  whenever  the  board  might 
(feem  it  expedient 

The  sixteenth  provided  that  the  notice  of  a  special  meeting  should 
specify  the  time  and  also  the  purpose  for  which  it  might  be  called,  and 
such  meeting  should  not  consider  or  take  action  in  any  matter  other- 
wise than  that  specified  in  said  notice. 

The  next  provided  that  at  any  meeting  of  the  club  for  action  in  the 
conduct  of  a  member  which  might  involve  his  expulsion,  or  for  an  alter- 
ation of  the  by-laws,  one-fourth  of  the  whole  number  of  the  members  of 
the  club  should  be  a  quorum. 

And  the  twentieth  provided  that  a  motion  involving  the  expulsion  of 
a  member  should  be  decided  by  ballot,  and  the  decision  of  a  majority 
should  be  final. 

The  respondent  annexes  to  this  return  a  copy  of  all  its  by-laws,  and 
prays  that  they  may  be  taken  as  a  part  of  this  return. 

The  respondent  alleges  that  it  owns  no  other  real  estate  than  its  club- 
house. 

The  respondent  further  alleges  that  the  relator  became  a  member  of 
the  said  club  in  1848,  and  thereby  bound  himself  to  the  observance  of 
such  by-laws  as  the  corporation  had  established  or  might  from  time  to 
time  establish  for  its  government. 

That  on  the  evening  of  the  24th  of  February,  1863,  the  relator  was 
guilty  of  breaking  the  said  by-laws  by  having  an  altercation  within  the 
walls  of  the  said  club-house,  in  a  room  in  said  club-house,  wherein  the 
said  corporation  was  then  in  session,  with  Samuel  B.  Thomas,  another 
of  the  members  of  said  corporation,  and  by  striking  him  a  blow  then 
and  there. 

That  an  investigation  of  the  said  conduct  of  the  relator  by  the  board 
of  direction  of  the  corporation  was  had  after  due  notice  to  the  relator, 
and  after  hearing  and  considering  all  the  circumstances  of  the  case,  as 
detailed  in  writing  by  the  relator,  by  the  said  Samuel  B.  Thomas  and  by 
other  witnesses  of  the  transaction,  the  said  board  requested  the  relator 
to  resign  his  membership  of  the  club,  which  the  relator  refused  to  do. 

That  the  board  of  direction  then  called  a  special  meeting  of  the  said 
corporation  to  be  held  on  the  1st  day  of  June,  1863,  and  that  the  notice 
of  said  proposed  meeting  was  posted  upon  the  notice-board  of  said  club- 
house for  more  than  the  ten  days  last  prior  to  the  said  1st  day  of  June ; 
that  the  relator  was  notified  in  writing  on  the  19th  day  of  May,  1863, 


398  FOEMS   IN   MANDAMUS   PEOCEEDINGS.  [§  322. 

of  the  said  proposed  meeting  to  be  held  on  the  said  1st  day  of  June; 
that  the  said  notice  so  posted  on  the  said  notice-board,  and  the  said 
written  notice  given  to  the  respondent,  both  specified  that  the  said  spe- 
cial meeting  to  be  held  on  the  said  1st  day  of  June  would  take  into  con- 
sideration the  circumstances  of  an  alleged  violation  by  Rowland  E. 
Evans  of  his  duty  as  a  corporator,  by  being  guilty  of  disorderly  conduct 
within  the  walls  of  said  club,  and  in  the  presence  of  a  meeting  of  the 
said  club,  in  offering  a  blow  to  Samuel  B.  Thomas,  one  of  its  members, 
on  the  evening  of  the  24th  of  February,  1863,  and  the  propriety  of  ex- 
pelling the  said  Rowland  E.  Evans  from  his  membership  of  the  club,  he 
having  been  heretofore,  to  wit,  on  the  7th  day  of  March,  1863.  requested 
by  the  board  of  direction  to  resign  from  the  club,  by  reason  of  such  con- 
duct, and  having  thereupon  refused  so  to  do. 

That  at  the  meeting  of  the  said  corporation  held  on  the  1st  day  of 
June,  1863,  in  accordance  with  said  notice,  over  one  hundred  members 
thereof  were  present,  the  said  corporation  then  having  only  two  hun- 
dred and  fifty  members,  and  after  an  examination  of  the  testimony  of- 
fered and  the  hearing  of  witnesses  on  the  subject  which  the  meeting  was 
called  to  consider,  a  motion  to  expel  the  said  relator  from  his  member- 
ship of  the  said  corporation  was  made,  and  upon  a  ballot  being  taken 
thereon,  sixty-eight  votes  were  cast  in  favor  of  the  motion  and  thirty- 
two  votes  were  cast  against  the  motion,  and  the  said  relator  was  there- 
upon declared  by  the  presiding  officer  of  said  meeting  to  be  expelled 
from  his  said  membership. 

Wherefore,  having  fully  answered,  the  respondent  prays  to  be  hence 
dismissed  with  its  costs  and  charges. 

Reply. 

For  reply  to  the  respondent's  return  herein  the  relator  denies  that  on 
the  evening  of  the  24th  of  February,  A.  D.  1863,  he  had  an  altercation 
with  one  Samuel  B.  Thomas,  or  that  he  struck  the  said  Thomas  in  a 
room  in  the  said  club-house,  in  which  the  said  corporation  was  in  ses- 
sion. 

The  relator  further  denies  that  at  the  meeting  of  the  said  corporation 
which  was  held  on  the  1st  day  of  June,  1863,  as  alleged  in  the  respond- 
ent's return,  any  evidence  or  testimony  was  introduced  or  presented  at 
the  said  meeting.1 

1  The  substance  of  the  foregoing  in  such  cases,  which  are  frequently 

petition  and  answer  may  be  found  presented      to     the    courts.      For 

in  Evans  v.  Philadelphia  Club,  50  further  illustrations  of  the    plead- 

Pa.  St  107.     The  allegations  have  ings    in    mandamus    proceedings 

been  altered  to  suit  the  objections  reference  may  be  had    to :    Doo- 

urged  by  the  litigants  and  by  the  little  v.  County  Court,  28  W.Va.  158 

court    The  case  is  introduced  be-  Com.  v.  Pittsburgh,  34  Pa.  St.  496 

cause  of  the  particularity  required  Secombe,    Ex  parte,    19  How.    9 


322.] 


FORMS    IN    MANDAMUS    PROCEEDINGS. 


399 


People  v.  Walker,  9  Mich.  328; 
King  v.  Goodrich,  3  Smith,  388; 
Drew  v.  McLin,  16  Fla.  17 ;  State 
v.  Lawrence,  3  Kans.  95 ;  Babcock 
v.  Goodrich,  47  Cal.  488 ;  State  v. 
Lafayette  Co.  (Court),  41  Mo.  545 ; 
State  v.  Grand  Island,  etc.  R  R  27 
Neb.  694 ;  Lafayette  (City)  v.  State, 


69  Ind.  218;  State  v.  Cincinnati 
(City),  19  Ohio,  178 ;  State  v.  Zanes- 
ville,  etc.  Co.,  16  Ohio  St  308; 
State  v.  Aldermen  (Act.  Bd.\  1 
Rich.  (N.  S.)  30 ;  Hawkins  v.  More, 
3  Ark.  345;  People  v.  Pearson,  2 
Scam.  189;  Taylor,  Ex  parte,  14 
How.  3. 


INDEX. 


ABATEMENT: 

If  respondent  goes  out  of  office,  courts  divided  as  to  whether  suit 

abates,  §  238. 
If  resignation  alone  does  not  vacate  office,  it  may  be  disregarded, 
§239. 
See  Death;  Contempt;  Officers. 

ABATEMENT  (PLEA  OF) : 

Waived  by  plea  in  bar,  §  274. 

Contra,  §  274,  n. 
Pendency  of  civil  suit  involving  same  matters,  not  good  as.  §  278. 
Pendency  of  mandamus  between  same  parties  on  same  subject  is 
good  as,  §  278. 
unless  second  writ  necessary  to  protect  rights,  §  278. 
Plea  that  prior  mandamus  was  quashed  not  good  as,  §  278. 

ACCOUNT : 

Mandamus  lies  to  proceed  in  suit  when  court  refuses  till  plaintiff 
files  an  account,  which  is  not  demandable,  §  204. 

ACTION : 

In  one  state  may  ask  mandamus  when  judgment  obtained,  §  245. 

ACTION  (RIGHT  OF): 

Often  a  bar  to  a  mandamus,  §  55. 

No  bar,  when  will  not  compel  the  action  desired,  §  109. 

Is  a  bar  to  a  mandamus  — 

to  compel  court  clerk  to  pay  prosecuting  attorney  his  fees,  §  53. 

to  enforce  contract  of  county  to  pay  bounty  to  volunteers,  §  53. 

to  make  a  corporation  pay  a  dividend  it  has  declared,  §  53. 

to  recover  money  expended  by  public  officers,  §  53. 

ACTION  FOR  DAMAGES : 

Formerly  only  remedy  if  return  to  alternative  writ  sufficient  in 
law,  §  4. 
If  such  action  successful,  peremptory  writ  issued  at  once,  §  4 
Generally  right  to  such  action  will  not  bar  a  mandamus,  §  53. 
See  Waiver. 
26 


402  INDEX. 

ADMINISTRATION : 

Mandamus  lies  to  grant  administration  to  proper  party,  §  189. 
Mandamus  refused  to  grant  administration  to   A.  pendente  lite, 

%  201. 
Mandamus  lies  to  probate  court  to  proceed  and  settle  the  accounts 

of  an  administrator,  §  204. 
Mandamus  refused  to  settle  accounts  of  an  administrator,  when  an 

injunction  against,  §  204. 

ADMISSION:  See  Corporator. 

AFFIDAVIT : 

To  motion  for  mandamus  may  be  made  by  third  parties.  §  245. 
Affidavit  and  motion  for  mandamus  may  be  one  paper,  §  246. 
Has  not  always  been  required  to  motion  for  mandamus,  §  246. 
Affidavit  to  motion  for  a  mandamus  — 

should  be  entitled  of  the  court,  §  247. 

should  not  be  entitled  of  a  cause,  §  247. 
contrary  suggestion,  §  247. 

if  party  should  know  the  facts,  should  be  positive,  §  248. 

must  be  as  positive  as  ordinary  affidavit  in  a  personal  action, 
§248. 

forms  no  part  of  the  record,  §  253. 
Not  required  by  common  law  to  a  return,  §  283. 
Court  may  require  to  a  return,  §  283. 
Form  of  to  a  petition  for  a  mandamus,  §  318. 
See  Title;  Motion  for  a  Mandamus. 

AGENTS: 

Cannot  be  the  relators  instead  of  public  officers,  their  principals,  §  231. 

AGREEMENTS :  See  Contracts  (Private). 

ALABAMA: 

Interlocutory  orders  of  courts  reviewed  by  mandamus,  §  199. 

ALDERMEN : 

Cannot  by  mandamus  be  seated  as  such,  when  by  charter  the  com- 
mon council  are  final  judges  in  such  elections,  §  313. 

ALTERNATIVE  WRIT: 

In  America  order  to  show  cause  generally  dispensed  with,  §  250. 
Court  fixes  time  to  make  return  to  it,  §  251. 
Corresponds  with  complaint  in  an  ordinary  action,  §  253. 
Must  have  certainty  to  a  common  intent,  §  254. 
Must  contain  necessary  averments,  but  may  be  informal,  g  254 
Must  state  all  facts  necessary  to  give  the  right  claimed,  and  justify 
the  order  asked,  §  255. 


INDEX.  403 

ALTERNATIVE  WRIT  (continued): 
Must  show  petitioner's  interest,  §  255. 

performance  of  all  conditions  precedent  and  mode  of  perform- 
ance, §  255. 
the  facts  imposing  the  duty  on  the  respondent,  §  255. 
that  respondent  still  has  the  power,  255. 
that  a  mandamus  will  be  efficient  as  a  remedy,  §  255. 
that  relator  has  no  other  remedy,  §  255. 
Every  material  fact  must  be  set  forth  distinctly,  fully  and  clearly, 

§  255. 

Facts  must  be  alleged  in  an  issuable  form,  §  255. 

Deficiency  of  allegations  cannot  be  supplied  by  the  return,  255. 

Must  on  its  face  show  a  good  case,  §  255. 

Allegations  should  be  confined  to  such  facts  as  are  necessary  to  de- 
termine the  rights  of  the  parties  before  the  court,  §  255. 

If  a  legal  liability  has  been  judicially  ascertained,  sufficient  to  so 
state  without  alleging  the  circumstances  showing,  §  256. 

Necessary  preliminary  circumstances  must  be  stated,  §  256. 

If  option  allowed,  cannot  ask  for  one  act  without  showing  exercise 
of  option  impossible,  §  256. 

Must  show  demand  of  performance  or  facts  making  it  unnecessary, 

§257. 
Failure  to  aver  demand,  when  required,  fatal  to  proceedings,  §257. 
Refusal  to  act,  or  facts  equivalent  to  a  refusal,  must  be  alleged,  §  257. 
Demand  to  act  must  be  alleged  with  precision,  §  257. 
When  demand  not  necessary,  refusal  to  act  need  not  be  alleged, 

§  258. 
When  no  direct  refusal,  may  allege  facts  equivalent  thereto,  §  258. 
Must  allege,  or  show  by  facts  stated,  that  no  other  sufficient  legal 

remedy,  §  259. 
Mandatory  clause  must  state  the  precise  act  required,  §  260. 
Respondent  cannot  be  required  to  look  beyond  the  writ,  §  260. 
Mandatory  clause  must  not  be  larger  than  warranted  by  the  recitals, 

§260. 
must  not  be  larger  than  warranted  by  the  statute.  §  260. 
must  demand  no  act  which  cannot  be  legally  required,  §  260. 
should  not  contain  order  in  the  alternative,  §  260. 

objections  to  such  ruling,  §  260. 
may  state  acts  required  in  general  terms  when  necessary  to  avoid 
great  prolixity,  §  260. 
Should  conform  to  petition,  §  202. 

When  granted  on  petition,  court  will  mould  as  to  relief,  §  263. 
When  granted  after  order  to  show  cause,  court  will  not  mould  as  to 

relief,  §  293. 
May  be  quashed  if  varies  in  substance  from  order  of  court,  &  262. 
Allegations  generally  stated  by  way  of  recital,  §  263. 


404  INDEX. 

ALTERNATIVE  WRIT  (continued): 

Sometimes  petition  with  order  of  court  used  as  such,  §  263. 
Must  be  properly  entitled  as  to  parties,  §  264. 
When  informal,  an  alias  may  issue,  §  265. 
If  adjudged  defective,  may  be  amended,  §  271. 
Validity  of,  may  be  impeached  on  attachment  for  contempt,  §  269. 
Form  of,  §  319. 
Illustration,  §  322. 

See  Amendments;  Title;  Exhibits;  Motion  for  Mandamus;  Re- 
turn to  Alternative  Writ. 

AMENDMENTS : 

Under  early  practice  only  allowed  for  formal  defects,  §§  268,  293. 

Formal  defects  waived  unless  taken  in  limine,  §  269. 

Alternative  writ  amendable,  if  adjudged  defective,  §  271. 

Return  amendable  if  adjudged  defective,  §  287. 

Now  allowed  at  any  time  to  promote  justice,  §  294. 

Respondent  cannot  be  forced  to  amend  return,  §  294. 

Peremptory  writ  alone  is  not  amendable,  §  294. 

Alternative  writ  may  be  amended,  and  then  peremptory  writ  issued 

in  conformity  with  it,  §  294. 
On  appeal  allowed  to  amend  alternate  writ  in  lower  court  and  then 

have  peremptory  writ,  §  294. 

AMOTION : 

Means  removal  from  office  and  not  from  corporate  membership, 

§137. 
See  Corporations  (Public)  ;  Corporations  (Private). 

APPEAL : 

Mandamus  not  granted  in  a  cause  where  an  appeal  lies,  §  53. 

Has  been  granted  when  appeal  not  sufficiently  efficacious,  §§  53,  201. 

Inconvenient  delay  attending  appeal,  no  ground  for  a  mandamus, 
§  201. 

Mandamus  lies  to  certify  an  appeal  to  the  appellate  court,  §  80. 

When  appeal  suspends  judgment,  mandamus  not  granted  to  put  one 
into  office  in  accordance  with  the  judgment,  §  144. 

When  appeal  does  not  suspend  judgment  the  appellant  cannot  have 
a  mandamus  to  put  him  into  office,  though  he  has  the  certificate 
when  the  judgment  was  for  the  respondent,  §  144 

Mandamus  not  lie  to  compel  allowance  of  appeal  from  interlocutory 
order  of  court,  §  196. 

Mandamus  lies  to  fix  the  supersedeas  bond  on  an  appeal,  §  189. 

Mandamus  lies  to  set  aside  wrongful  dismissal  of  appeal  from  a  non- 
suit, §  201. 

Cannot  review  judgment  by  a  mandamus,  when  no  appeal  allowed, 
§202. 
because  of  failure  to  appeal  in  time,  §  201. 


INDEX. 


405 


APPEAL  (continued): 

Mandamus  lies  to  grant  an  appeal,  when  party  entitled  to  it,  §  208. 
If  mandamus  issued  to  grant  appeal,  it  will  require  performance 
of  all  acts  necessary  to  make  appeal  efficacious,  §  208. 
In  such  cases,  if  necessary,  the  court  will  be  ordered  — 
to  make  a  nunc  pro  tunc  order,  §  208. 
to  record  the  allowance  of  the  appeal,  §  208. 
to  allow  appeal  from  probate  of  codicil  of  a  will,  §  208. 
to  make  out  and  deliver  the  transcript,  §  208. 
to  examine  appeal  bond  and  grant  a  supersedeas,  if  suffi- 
cient, §  208. 
Mandamus  lies  to  compel  court  to  entertain  an  appeal,  if  it   im- 
properly refuses,  §  203. 
If  appeal  improperly  dismissed,  does  mandamus  or  appeal  lie,  §  205. 
mandamus  does  not  lie,  if  such  dismissal  is  considered  a  final 

judgment,  §§  205,  206. 
a  mandamus  lies,  unless  another  remedy  or  the  decision  is  by 
law  intended  to  be  final,  §  205. 
Mandamus  lies  to  an  officer  to  obey  decision  of  his  superior  officer, 
to  whom  an  appeal  was  taken  from  his  decision,  §  31. 

APPEAL  IN  MANDAMUS  PROCEEDINGS: 

Prior  to  statute  of  9  Anne  no  appeal  allowed,  §  304. 

Now  allowed  in  England  if  return  is  traversed,  or  there  is  a  verdict 

or  a  judgment  on  a  demurrer,  §  304. 
In  America  always  allowed,  if  action  of  court  considered  a  final 

judgment,  $  305. 
There  must  first  be  a  final  judgment,  §  305. 
Appeal  has  been  allowed  — 

when  peremptory  writ  allowed  on  the  pleadings,  §  305. 

when  peremptory  writ  issued,  the  respondent  declining  to  plead 

after  demurrer  to  petition  overruled,  §  305. 
when  proceedings  dismissed  on   hearing  of  application  or  of 
order  to  show  cause,  §§  305,  306. 
There  must  be  a  court  with  appellate  jurisdiction  of  cause,  §  308. 
See  Supersedeas. 
APPLICATION :  See  Demand. 

APPROPRIATIONS : 

Mandamus  not  lie  to  state  officers  to  pay  out  money  in  the  absence 
of  an  appropriation,  £§  89,  104,  105. 

Mandamus  not  lie  to  state  officers  to  pay  out  money  which  the  state 
has  otherwise  appropriated,  §  89. 

"When  law  fixes  salary  and  directs  its  payment,  no  annual  appropri- 
ation necessary.  §  104. 

APPROVAL : 

Mandamus  not  lie  to  do  an  act,  when  no  duty  to  do  it,  unless  another 
party  approves,  §  58. 


40(>  INDEX. 

ARBITRATION : 

Arbitrators  not  required  by  mandamus  to  proceed  to  arbitrate,  §  16. 

compelled  to  select  an  umpire,  §§  24,  35. 
A  witness  compelled  to  make  affidavit  to  a  submission  to  arbitra- 
tion, §  24. 
See  Private  Parties. 

ARREST : 

Mandamus  lies  to  court  to  cause  release  of  party  improperly  arrested 

on  civil  process,  §  189. 
Mandamus  not  lie  to  release  party  committed  to  jail,  or  required  to 

give  bond,  on  a  charge  of  crime,  §  209. 
Mandamus  not  lie  to  release  one  alleged  to  be  improperly  detained 

under  order  of  court,  §  209. 

ASSESSORS  OF  TAXES : 

Required  to  do  their  duty,  §  127. 

to  assess  all  property  subject  to  taxation,  §  127. 
to  assess  taxes  as  increased  by  board  of  equalization,  §  127. 
to  enter  in  assessment  book  prior  delinquent  taxes,  §  127. 
to  charge  assessment  to  proper  party,  §  127. 
to  assess  a  school  tax,  as  determined  by  proper  authorities,  §  127. 
to  include  in  taxes  claims  allowed  against  county,  §  127. 
not  to  assess  increased  taxes  imposed  by  illegal  board  of  equali- 
zation, §  127. 
to  assess  to  return  taxes  wrongfully  assessed  and  paid,  §  127. 
Not  required  to  assess  taxes,  if  in  excess  of  the  law,  §  127. 
Mandamus  not  lie  to  them,  when  no  longer  have  control  of  the  as- 
sessment, §§  75,  127,  241. 
Not  required  to  make  the  legal  oath  to  the  assessment  rolls,  when 

they  return  they  cannot  truthfully  do  it,  §  60. 
Must  accept  governor's  interpretation  of  the  law,  when  not  judicially 

determined,  unless  plainly  wrong,  §  127. 
Not  subject  to  mandamus  in  acts  calling  for  discretion  and  judg- 
ment, §  127. 

ASSIGNEE : 

Assignee  of  part  of  a  debt  cannot  compel  public  officers  to  issue  a 
warrant  to  him,  §  111. 
A  SSOCI ATIONS :  See  Societies. 

ATTACHMENT : 

Lies  for  disobedience  of  writ  of  mandamus,  §§  2,  298. 

May  issue  to  compel  a  return  to  the  alternative  writ,  §  266. 

May  issue  when  no  return  made  to  peremptory  writ  of  mandamus, 

§298. 
If  clear  no  intentional  contempt,  an  alias  peremptory  writ  may  issue, 

§297. 


INDEX.  407 

ATTACHMENT  (continued) : 

Is  sought  by  motion,  supported  by  affidavits,  §  298. 

Court  grants  an  order  to  show  cause  why  an  attachment  should  not 

issue,  §  297. 
If  the  return  to  the  alternative  writ  is  made  to  avoid  the  justice  of 

the  court,  a  rule  may  issue  to  show  cause  why  an  attachment 

should  not  issue  for  contempt  of  court,  §  284. 
On  attachment  for  contempt,  may  impeach  validity  of  the  alterna- 
tive writ,  §  269. 
Mandamus  allowed  in  Alabama  to  review  action  of  court  relative  to 

quashing  an  ancillary  attachment,  §  199. 
If  a  corporation  disobeys,  the  writ  issues  against  the  individuals 

who  disobey  the  writ  of  mandamus,  §  303. 
Officers  of  board  or  corporation  who  are  in  office  when  the  writ 

issues  must  obey,  and  they  are  liable  to  proceedings  for  contempt, 

§303. 
Only  one  attachment  should  issue  against  all  the  officers,  §  303. 
If  a  board  disobeys  the  writ,  and  several  members  are  willing  to 

obey  it,  a  disputed  question  whether  all  should  be  attached,  §  303. 
In  Alabama  a  mandamus  may  be  granted  to  review  the  action  of 

the  court  in  granting  or  setting  aside  an  attachment  for  a  witness, 

§199. 
In  Michigan  a  mandamus  was  granted  to  vacate  an  order  quashing 

the  attachments  of  defendants  in  a  suit,  §  200. 
See  Contempt  of  Court  ;  Order  to  Shcw  Cause  Why  Attach- 
ment Not  Issue. 

ATTORNEYS : 

Mandamus  lies  to  restore  disbarred  attorneys,  §  195. 

unless  the  court  had  a  discretion,  §  195. 
Attorneys  disbarred  may  be  so  restored  — 

if  the  court  went  outside  of  its  discretion,  §  195. 

if  the  proceedings  were  irregular  or  against  law,  §  195. 

if  the  court  was  without  jurisdiction,  §  195. 

if  there  was  flagrant  injustice,  §  195. 

if  the  court's  action  was  erroneous  or  a  mistake,  §  195. 

if  the  judgment  is  too  severe,  §  195. 
Mandamus  lies  to  admit  one  to  be  an  attorney,  when  the  right  is 

given  by  law,  §  195. 
A  return  by  its  attorney  is  not  the  return  of  a  county  court,  §  282. 
A  mandamus  will  not  lie  to  county  officers  to  pay  an  attorney  em- 
ployed by  them  without  authority  of  law,  §  111. 

ATTORNEY-GENERAL : 

Represents  the  government  in  mandamus  proceedings,  §  229. 
Cannot  be  required  to  file  a  quo  warranto  when  he  is  allowed  a  dis- 
cretion about  filing,  §  33, 


4-OS  INDEX. 

AUDITOR: 

Can  be  required  by  a  mandamus  — 

to  audit  a  claim  properly  allowed,  §  126. 
to  issue  his  warrant  for  a  properly  allowed  claim,  §  126. 
to  place  proper  assessments  on  a  tax  duplicate,  §  31. 
to  pass  on  a  claim,  when  discretion  therein  is  given  to  him,  55 126. 
to  pass  on  each  item  of  an  account,  §  126. 

to  draw  a  warrant,  though  the  funds  have  been  improperly  ap- 
plied, §  126. 
to  correct  his  books,  if  the  funds  are  improperly  credited,  §  126. 
to  audit  an  officer's  salary  account,  §  136. 

to  issue  a  warrant,  if  a  prior  one  did  not  reach  the  creditor,  §  126. 
to  perform  any  other  ministerial  duty,  §  126. 
Cannot  be  required  by  mandamus  — 

to  issue  his  warrant  for  claim  not  properly  allowed,  §  126. 
not  legal,  §  126. 

where  allowance  has  been  reversed,  §  126. 
to  allow  a  claim  as  of  a  certain  amount,  when  discretion  given 

him,  §  126. 
to  audit  a  claim  till  it  has  been  properly  allowed,  §  126. 
to  audit  a  claim,  unless  such  is  his  duty  by  law,  §  126. 
to  audit  a  salary  fixed  and  adjudicated  by  law,  §  135. 
He  cannot  review  an  allowance  already  legally  made,  §  126. 
Auditor  of  a  city  cannot  refuse  to  draw  his  warrant,  when  the  legis- 
lature authorizes  the  city,  and  the  city  wishes,  to  pay  the  account, 
although  originally  contracted  ultra  vires,  §  126. 
Can  an  auditor  be  required  to  draw  his  warrant,  when  there  are  no 
funds  on  hand?  Controverted,  §  126. 

AUDITOR  OF  STATE : 

Has  been  required  by  a  mandamus  — 

to  issue  his  warrant  for  an  officer's  salary,  §  105. 

to  transfer  and  fund  state  bonds,  §  105. 

to  publish  statements  of  insurance  companies,  §  105. 

to  advertL«e  for  public  printing,  §  105. 

to  issue  notes  to  a  bank,  §  105. 

to  issue  his  warrant  for  a  claim  legally  allowed,  §  105. 
If  doubtful  about  a  claim,  he  may  wait  for  a  mandamus,  §  105. 
Cannot  alter  amount  of  a  claim  settled  by  his  predecessor,  §  105. 
Must  recognize  the  de facto  officer,  holding  the  commission,  §  105. 
His  discretion  only  reviewed  in  a  case  of  clear  and  wilful  disregard 

of  duty,  §  105. 
Must  recognize  as  member  of  legislature  the  party  holding  the  proper 

certificate,  if  no  contest  pending  in  legislature,  §  107. 
Cannot  be  required  to  draw  his  warrant  if  no  appropriation,  §  105. 

controverted,  §  105. 


INDEX.  409 

AUDITOR  OF  STATE  (continued): 

Cannot  be  required  to  draw  warrant,  if  appropriation  exhausted. 

§105. 
See  Executive  Officers;  Salaries;  Warrants. 

AWARDS  : 

To  enter  as  judgment  of  court,  mandamus  issued,  §  189. 

B. 

BAIL: 

Mandamus  refused  to  decide  amount,  §  187. 

BAILEE : 

Mandamus  will  not  go  against  a  private  bailee,  §  23. 

BANKRUPT : 

Mandamus  issues  to  his  commissioners  to  issue  warrant  for  his  ex- 
amination, §  204. 

BIDS  FOR  PUBLIC  CONTRACTS: 

Mandamus  issued  to  let  contract  to  lowest  bidder,  §  117. 
for  county  buildings,  §  117. 
for  state  printing,  §  117. 
for  supplies  for  county,  §  117. 
Mandamus  refused,  when  law  to  let  to  lowest  bidder  is  directory, 
§117. 
because  bidder  has  no  clear  legal  right  to  it,  §  56. 
when  public  interests  required  new  advertisement,  §  66. 
when  officer  allowed  a  discretion,  §  117. 
because  law  gave  discretion  — 

when  bid  deemed  excessive,  §  117. 
when  bidder  required  to  be  responsible,  §  117. 
when  bidder  required  to  give  adequate  security,  §  117. 
when  right  reserved  to  reject  all  bids,  §  117. 
when  contract  required  special  skill,  §  117. 
when  bid  not  lowest  according  to  amount  required,  §  117. 
See  Contracts. 

BILL  OF  EXCEPTIONS: 

Mandamus  lies  to  judge  to  sign,  §  190. 

Not  lie  to  one  who  acted  as  judge  only  by  consent  of  parties,  §§  23, 

193. 
Not  lie  to  judge,  if  predecessor  tried  case,  §  194. 

if  he  has  resigned  or  term  has  expired,  §§  193,  241. 
Exceptional  cases,  §§  78,  193,  n. 
The  bill  should  accompany  the  petition,  §§  190,  261. 
Decision  of  judge  final  as  to  correctness  of  bill,  §  190. 
Judge  cannot  be  required  to  sign  a  particular  bill,  §  32. 
Writ  will  not  direct  judge  how  to  frame  it,  §  190. 


410  INDEX. 

BILL  OF  EXCEPTIONS  (continued): 

Writ  refused  if  judge  returns  that  he  has  already  signed  a  bill,  §  190. 
Affidavits  ordered  stricken  from  files  may  by  mandamus  be  inserted 

in  the  bill,  §  190. 
Bill  should  in  good  faith  profess  to  contain  all  the  evidence,  §  190. 
Proper  course  to  pursue  in  preparing  bill,  §  190. 
Writ  granted  if  judge  admits  bill  to  be  correct  or  has  acted  on  it  as 

correct,  §  190. 
Bill  must  be  presented  in  time  allowed  by  law  unless  the  time  ex- 
tended by  order  entered  of  record,  §  192. 
When  not  signed  in  time  by  judge's  fault,  mandamus  lies  to  sign, 
§§  50,  80,  192. 
opposing  party's  fault,  192. 
When  judge  can  decide  whether  delay  excusable,  mandamus  not  lie, 

§192. 
Writ  refused  if  bill  incorrect,  illegible,  disorderly  erased  or  interlined, 
§190. 
if  prisoner  has  escaped  after  conviction,  §§  68,  194. 
if  law  provides  another  remedy,  §§  53,  194. 
to  erase  alterations  made  by  judge  after  signature,  §§  23,  194. 
Application  to  obtain  under  statute  of  Westminster,  §  191. 

BOARDS : 

Mandamus  lies  against,  by  a  member  thereof,  §  231. 

to  accept  as  a  member  one  elected  as  such,  §  142. 
Mandamus  refused  to  compel  acceptance  as  a  member  of  one  elected 

as  such  if  it  has  already  recognized  another  party  as  such,  §  143. 
Return  should  in  form  be  the  return  of  the  board,  §  282. 
Individual  members  cannot  put  in  their  own  returns,  §  282. 
A  majority  can  make  a  return  in  the  name  of  the  board,  §  282. 
If  it  cannot  agree  on  a  return  court  will  compel  an  agreement,  §  282. 
Of  two  returns  court  will  decide  which  is  the  true  one,  §  282. 

BONDS  (MUNICIPAL) : 

Mandamus  lies  to  deliver  public  bonds  to  officers  entitled  to  their 

custody,  §  135. 
Mandamus  lies  to  pay  interest  thereon  out  of  a  certain  fund  accord- 
ing to  statute,  §  135. 
Mandamus  issued  to  deliver  county  bonds  to  a  railroad,  §  111. 
to  deliver  county  bonds  to  a  contractor,  §  111. 
to  president  of  a  village  to  sign  its  bonds,  §  111. 
Not  required  to  issue  in  accordance  with  vote,  when  notice  of  elec- 
tion irregular,  §  111. 
six  years  after  were  demandable  on  account  of  laches,  §  87. 
to  sell,  when  option  allowed  about  selling,  §  110. 
See  Taxes  (Levy  of). 


INDEX.  411 

BONDS  (OFFICIAL): 

Whether  approval  of,  is  judicial  or  ministerial,  depends  much  on 

local  law,  §  118. 
If  approval  of  is  a  judicial  act,  mandamus  refused ;  if  ministerial. 

granted,  §§  31,  32,  118,  153. 
Writ  will  not  issue  to  accept  bond  when  filed  after  time  allowed, 

§123. 
Refused  to  compel  acceptance  after  office  declared  to  be  vacant, 

§  187. 
When  pleading  an  official  bond,  averments  are  necessary  showing 

that  it  complies  with  the  law,  §  256. 
See  Appeal  ;  Prima  Facie  Title  ;  Supersedeas. 

BOOKS  (PUBLIC) : 

Mandamus  lies  to  compel  their  production,  §  14 

To  obtain  inspection,  relator  must  show  in  petition  an  interest  in  such 
documents,  and  his  good  faith,  §  14. 

Not  necessary  to  make  any  showing  when  law  allows  inspection  as 
a  right,  §  14. 

Not  necessary  to  make  any  showing  when  intent  of  law  to  allow  in- 
spection to  prevent  fraud,  §  14. 

Mandamus  lies  to  obtain  possession  of  by  party  entitled  to,  §§  154, 

155. 
Officer  having  the  commission  may  obtain  possession  of  by  this  writ. 

§§  23,  142. 
Mandamus  lies  to  late  incumbent  to  obtain  books  of  his  office,  §  78. 
Writ  not  lie  to  obtain  public  books  from  a  private  party,  §  156. 
Respondent  must  be  an  officer,  the  late  incumbent  or  executor  or 
widow  of  an  officer  or  of  the  late  incumbent,  or  one  claiming  to 
act  as  such  officer,  §§  24, 156. 
The  writ  lies  to  compel  the  production  of  public  books  at  corporate 

meetings,  §§  109,  155. 
This  writ  lies  to  compel  their  submission  to  legal  inspectors,  §  155. 
the  making  of  entries  therein  in  the  manner  the  law  requires, 

§109. 
their  deposit  as  required  by  law,  §  155. 
Books  containing  the  public  accounts  become  public  books,  though 

other  entries  are  made  therein,  §  155. 
See  Buildings  (Public)  ;  Insignia  ;  Jail  ;  Paraphernalia  ;  Prima 
Facie  Title. 
BOOKS  (PRIVATE  CORPORATION) : 

Director  can  inspect  as  a  matter  of  right,  §  161. 

Corporator  can  obtain  an  inspection  by  mandamus,  §  161. 

Not  granted  to  a  corporator  for  curiosity,  speculative  purposes,  etc, 

§161. 
Corporator  must  show  good  motive  and  object,  unless  the  law  al- 
lows him  ao  inspection  as  a  matter  of  right,  §  161. 


412  INDEX. 

BOOKS  (PRIVATE  CORPORATION)  (continued) : 

A  creditor  may  by  mandamus  obtain  an  inspection  wben  the  law 

gives  him  the  right,  §  161. 
An  officer  will  by  this  writ  be  compelled  to  deliver  such  books  to 

his  successor,  §  165. 
Books  used  by  officer  to  make  corporate  entries  become  corporate 

books,  §§  161,  165. 
No  matter  how  such  books  are  kept  they  are  subject  to  inspection, 

§161. 
The  custodian  of  the  books  is  the  proper  respondent,  §  334. 
Directors  may  be  joined  as  respondents  if  custodian  acts  under  their 

orders,  §  334. 
By  statute  a  mandamus  allowed  to  obtain  the  books  of  the  local 

superintendent  for  a  foreign  corporation,  §  22. 

BOUNTIES :  See  Volunteers. 

BRIDGES  (PUBLIC): 

Mandamus  lies  to  county  officers  to  appropriate  money  to  build  a 
bridge,  §  111. 
to  build  a  bridge  as  required  by  statute,  £111. 
to  repair  bridges  kept  open  for  public  travel,  §  116. 
Duty  to  keep  a  bridge  in  repair  includes  rebuilding  when  necessary, 

§116. 
When  discretionary  whether  or  not  to  build  or  rebuild  a  bridge, 

mandamus  not  lie.  §§  33,  116. 
Mandamus  will  lie  to  repair  a  bridge,  but  will  not  indicate  the  mode 

or  time  of  repairing  when  discretion  allowed  therein,  §  116. 
A  private  corporation  cannot  be  compelled  by  mandamus  to  fulfill 
its  contract  to  keep  a  bridge  in  repair,  §  16. 

BUILDINGS  (PUBLIC): 

Mandamus  lies  to  obtain  possession  by  officer  entitled  to  custody, 

§§  142,  154,  155. 
Writ  lies  to  levy  a  tax  to  pay  for  their  construction,  §  129. 
See  Prima  Facie  Title. 

c. 

CANVASSING  BOARD :  See  Elections  (Canvassers  of). 

CASUS  OMISSUS: 

Mandamus  will  not  lie  to  enforce,  §  60. 

CERTIFICATE  OF  ELECTION : 

Mandamus  lies  to  issue,  although  already  given  to  another,  §  182. 
when  decision  for  relator  has  been  sustained  on  appeal  by  equally 
divided  court,  §  181. 
Mandamus  refused,  when  not  disputed  that  relator  ineligible,  180. 
See  Commission;  Elections  (Canvassers  of). 


INDEX. 


41:5 


CHANCERY:  See  Equity. 

CLERK  OF  COUNTY  BOARD :  See  County  Board  (Clerk  of). 

COLLECTORS  OF  REVENUE : 

Mandamus  lies  to,  to  discharge  their  duties,  §  133. 
to  make  tax  deeds,  §  133. 
to  pay  school  taxes  to  proper  officers,  §  134. 
to  pay  taxes  collected  for  railroad  bonds  to  the  proper  officers, 

§  134 
Such  duties  must  be  officially  imposed  on  them,  §  133. 

COMMISSION : 

One  holding  the  commission  has  prima  facie  right  to  the  office,  §  142. 

can  by  mandamus  obtain  admission  to  office,  §  142. 
Rights  of  one  holding  commission  can  only  be  questioned  in  quo 

warranto  or  contest  for  office,  §  142. 
Cannot  obtain  by  mandamus  admission  to  office,  pending  an  appeal 
on  contest  for  office,  decided  against  him,  if  appeal  does  not  sus- 
pend the  judgment,  §  144. 
See  Boards  ;  Certificate  of  Election  ;  Prima  Facie  Title. 

COMMISSIONER  OF  PATENTS :  See  Patents  (Commissioner  of). 
COMMISSIONER  OF  PENSIONS :   See  Pensions  (Commissioner  of). 
COMMISSIONER  OF  STATE  LAND  OFFICE:  See  State  Land  Of- 
fice (Commissioner  of). 

COMMON  CARRIERS: 

Mandamus  lies  to,  to  treat  all  alike,  §§  25,  162. 

See  Irrigation;  Railroads;  Telephones;  Public  Use. 

COMMON  LAW: 

Generally  adopted  in  America,  §§  6,  285. 

A  sufficient  common-law  remedy  bars  a  mandamus,  §  51. 

COMPTROLLER  OF  STATE : 

Mandamus  lies  to  enforce  duties  specifically  imposed  on  him,  §  104. 
Mandamus  not  lie  when  discretion  and  judgment  allowed  him,  §  1U4. 
Mandamus  issued  to  audit  account  of  legislator,  §  104. 
to  issue  his  warrant,  §  104. 
to  allow  inspection  of  his  records,  §  104. 
If  in  doubt  as  to  party  or  his  duty,  may  await  a  mandamus,  §  104. 
See   Appropriations;    Executive   Officers;   Salaries;    War- 
rants. 

CONCILIUM : 

Under  early  practice  took  the  place  of  a  demurrer,  §  268. 

If  alternative  writ  good  on  concilium,  peremptory  writ  issued,  §  268. 

If  return  good  on  concilium,  judgment  for  respondent,  §  268. 

If  return  bad  on  concilium,  peremptory  writ  issued,  268. 

Concilium  ordinarily  preferred  to  motion  to  quash,  §  268. 

See  Demurrer. 


414:  INDEX. 

CONGRESSMAN: 

Mandamus  lies  to  canvass  returns  of  election  for  congressman,  as 
provided  by  state  law,  §  183. 

CONSTITUTIONAL  LAW: 

Will  constitutionality  of  law  be  passed  on  in  mandamus  proceed- 
ing?   Disputed  question,  §  65. 

Ministerial  officer  cannot  in  mandamus  proceedings  raise  the  ques- 
tion of  constitutionality  of  a  law,  §  65. 

The  extent  of  the  application  of  a  mandamus  relative  to  an  existing 
debt  may  be  increased,  §  20. 

Law  cannot  take  away  right  to  compel  by  a  mandamus  levy  of  tax 
to  pay  a  debt  already  contracted  if  there  is  no  other  adequate 
specific  remedy,  §  20. 

CONTEMPT  OF  COURT: 

Mandamus  not  lie  to  compel  court  to  punish  for,  §  187. 

not  lie  to  compel  court  to  rehear  proceedings  for  contempt  after 

a  discharge  on  the  hearing,  §  187. 
granted  in  Michigan  to  vacate  an  order  punishing  for  contempt 
of  court,  §  200. 

Officers  of  a  corporation  individually  liable  for  disobedience  of  a  man- 
damus by  the  corporation,  §  237. 

If  all  of  a  board  are  attached  for  disobedience,  court  will  not  punish 
those  willing  to  obey,  §  303. 

Successor  in  office  of  the  respondent  must  be  notified  of  proceedings 
before  he  can  be  punished  for  contempt,  §  238. 

Parties  must  have  actual  notice  of  proceedings  before  adjudged 
guilty  of  contempt,  §  303. 

Party  to  suit  presumed  to  have  notice  of  all  the  proceedings,  §  303. 

If  court  had  jurisdiction,  contempt  to  disobey  though  decision  erro- 
neous, §  302. 

If  no  jurisdiction,  no  contempt,  and  party,  if  committed,  may  be 
released  on  habeas  corpus,  §  302. 

Punishment  is  usually  a  fine  and  committal  to  prison  till  fine  paid 
and  order  obeyed,  §  302. 

Court  may  include  as  costs  a  fair  compensation  to  relator  s  attor- 
neys for  services  in  the  contempt  proceedings,  §  302. 

If  on  attachment  respondent  returns  obedience  to  writ,  relator  may 
traverse  such  return,  g  302. 

CONTINUANCE : 

Mandamus  issued  to  court  to  proceed  with  a  cause  which  it  contin- 
ued without  a  proper  showing,  204. 

CONTRACTS  (PRIVATE): 

Mandamus  will  not  he  to  enforce,  §  16. 
Statute  may  however  so  provide,  §  16. 


INDEX.  415 

CONTRACTS  (PRIVATE)  (continued): 

Mandamus  will  lie  to  enforce  when  it  is  a  public  trust  or  official 

duty,  §  16. 
Form  of  contract  cannot  confer  a  right  to  this  writ,  §§  16,  174,  210. 
Object  sought  immaterial  as  to  right  to  this  writ,  §  16. 

CONTRACTS  (PUBLIC): 

Mandamus  not  lie  to  let  a  public  contract,  when  officer  allowed  dis- 
cretion about  letting  or  as  to  certain  requirements,  §§  110,  116. 
Mandamus  refused  to  let  contract  to  bidder,  §  16. 

to  let  contract  to  bidder,  when  work  changed,  §  117. 
to  let  contract  to  bidder  because  bidder  has  no  absolute  right  to 
it.  §§  117,  229. 
See  Bids. 

CORPORATIONS : 

Writ  of  mandamus  against  a  corporation  should  run  against  the  cor- 
poration by  name,  or  the  officer  or  select  body  thereof  whose  duty 
it  is  to  do  the  act  desired,  or  against  both  jointly,  §  237. 

If  the  writ  runs  to  the  select  body,  it  should  give  the  titles  of  such 
officers,  with  or  without  their  individual  names,  §  237. 

Objections  as  to  mode  of  specifying  the  respondents  must  be  taken 
in  limine,  §  237. 

In  such  cases  no  change  of  members  will  affect  the  proceedings,  §  240. 

The  officers  who  disobey  the  writ  can  alone  be  punished  for  con- 
tempt, §  237. 

In  such  cases  doctrine  of  discontinuance  does  not  apply  as  to  officers 
not  served,  §  237. 

Those  in  office  when  writ  issues  must  obey  it,  §  240. 

When  corporation  abolished,  only  remedy  is  by  application  to  the 
legislature,  §  240. 

When  alternative  writ  is  directed  to  a  corporation  or  a  board,  the  re- 
turn should  be  in  form  its  return,  §  282. 

Return  by  individual  members  personally  is  not  proper,  §  282. 

See  Contempt  of  Court. 

CORPORATIONS  (BENEVOLENT): 

Mandamus  lies  to  levy  assessment  to  pay  death  losses,  §  174 

When  liability  is  denied,  suit  must  first  be  brought,  §  174. 

When  agreement  is  to  pay  amount  of  assessment,  suit  must  first  be 

brought  to  determine  amount  of  assessment,  §  174. 
When  agreement  to  pay  a  certain  sum  on  death,  the  remedy  is  by 

suit,  §  174. 
Mandamus  not  lie  to  levy  assessments  in  excess  of  the  allowance  of 

laws  of  the  corporation,  §  174. 
See  Ecclesiastical  Tribunals;  Visitor. 


4 1 6  INDEX. 

CORPORATIONS  (FOREIGN) : 

Questionable  whether  a  mandamus  runs  against,  §  177. 
Under  statute  a  mandamus  has  issued  against  its  agent,  §  177. 

CORPORATIONS  (PRIVATE) : 

Mandamus  against  formerly  refused  in  England,  §  22. 
Now  mandamus  runs  against  all  corporations,  §§  28,  157,  158. 
Can  have  a  mandamus  to  obtain  its  books,  §  24. 
Mandamus  issued  against  — 

to  pay  taxes  assessed  on  its  capital  stock,  §  159. 
to  submit  their  affairs  to  an  examination,  §  159. 
to  furnish  names  of  stockholders  to  tax  assessors,  §  159. 
to  allow  owner  of  a  lot  in  a  cemetery  to  bury  a  colored  person 
therein,  §  159. 
Mandamus  will  not  lie  where  there  is  another  remedy,  §  163. 
Mandamus  not  lie  to  pay  a  dividend  it  has  declared,  §  163. 
Cannot  be  required  to  file  a  tax  statement,  when  upon  default  it  is 

duty  of  county  auditor  to  make  it,  §  53. 
Will  not  be  compelled  to  show  its  list  of  stockholders,  when  not 

sought  for  a  proper  purpose,  §  68. 
Will  not  be  required  by  mandamus  to  make  a  transfer  of  its  stock 
on  its  books,  §  160. 
such  transfer  has  been  compelled  by  some  courts,  §§  54,  160. 
under  special  statutes  such  transfer  compelled,  §  160. 
equitable  transferee  cannot  compel  such  transfer  on  the  books, 
§56. 
When  unable  to  discharge  its  duties,  quo  warranto  is  the  proper 

remedy,  §  176. 
See  Corporators  (Private  Corporations)  ;  Books  (Private  Cor- 
porations);   Ecclesiastical   Tribunals;    Officers   (Private 
Corporations);  Public  Use;  Visitor. 

CORPORATIONS  (PUBLIC): 

May  have  a  mandamus  to  obtain  its  books,  §  24. 

May  by  mandamus  compel  officers  to  produce  their  books  at  their 

meetings,  §  109. 
May  be  by  mandamus  compelled  to  perform  any  ministerial  act, 

§108. 
Mandamus  lies  to  enforce  a  judgment  against,  §  130. 
Cannot  in  mandamus  to  pay,  or  to  levy  a  tax  to  pay  a  debt  due  the 

state,  set  up  a  debt  due  it  from  the  state,  §  89. 
Mandamus    not    lie    to    pay   damages    accruing,   while  hesitating 

whether  to  abandon  condemnation  proceedings,  §  135. 
Power  to  disfranchise  a  corporator  must  be  expressly  authorized  by 

law  or  by  prescription,  unless  he  has  been  convicted  of  a  felony, 

s  137. 


INDEX. 


417 


CORPORATIONS  (PUBLIC)  (continued): 

If  a  corporator  has  been  wrongfully  disfranchised,  he  may  be  re- 
stored by  this  writ,  §  137. 

Party  having  proper  qualifications  may  have  a  mandamus  to  admit 
him  as  a  member,  if  the  duty  is  imperative  on  the  officers,  §  137. 

Mandamus  will  lie  to  count  the  votes  cast  at  an  election,  §  139. 

The  mayor  with  the  consent  of  the  majority  of  the  burgesses  should 
make  return  to  an  alternative  writ  for  a  municipality,  §  282. 

Writ  refused  to  give  bonus  to  a  railroad,  when  bribery  used  to  con- 
trol the  vote  therefor,  §  68. 

See  Books  (Public)  ;  Subscriptions  ;  Visitor. 

CORPORATORS  (PRIVATE  CORPORATION): 

May  be  restored  by  mandamus,  when  wrongfully  expelled,  §§166, 167. 
Not  necessary  that  pecuniary  interest  should  be  involved,  §§  49,  167. 
Before  expulsion  a  corporator  must  have  — 

notice  of  the  charges,  §  168. 

a  full  opportunity  to  be  heard,  §  168. 

opportunity  to  be  present  at  the  taking  of  testimony,  §  168. 

opportunity  to  examine  the  witnesses,  §  168. 
Expulsion  must  be  by  body  of  corporators,  unless  charter  otherwise 

provides,  §  168. 
The  charges  must  be  covered  by  the  law  as  to  the  offenses,  §  168. 
Mode  of  expulsion  must  conform  to  the  rules,  §  168. 
Legal  grounds  for  disfranchising  a  corporator,  §  166. 
Joint-stock  company  must  have  express  power  to  disfranchise,  §  16G. 
Corporator  cannot  be  disfranchised  — 

for  villifying  another  member,  §  166. 

for  not  submitting  business  controversies  to  arbitration,  §  166. 

for  not  paying  unnecessarily  increased  dues,  §  166. 

for  not  acting  on  committees,  §  166. 

for  not  obeying  improper  by-laws,  §  166. 

from  private  revenge.  §  1 66. 

from  religious  intolerance,  §  166. 

from  political  proscription,  §  166. 
Disfranchisement  must  be  ordered  in  good  faith,  §  166. 
Court  will  construe  by-laws,  and  sustain  them,  if  praoti  -able,  §  166. 
Record  of  expulsion  should  show  all  the  proceedings,  §  170. 
Must  be  some  one  to  pass  on  the  facts,  §  168. 

exception  in  mutual  assessment  insurance  associations,  §  168. 
Copies  of  charter  and  by-laws  usually  filed  with  the  petition  or  with 

the  return,  §  261. 
Mere  irregularities,  leading  up  to  expulsion,  not  vitiate  the  proceed- 
ings, §  170. 
Expelled  member  must  first  appeal  to  corporate  tribunals,  §  169. 

unless  no  jurisdiction  to  expel  on  charges  preferred,  §  169. 
27  ' 


4 1 8  INDEX. 

CORPORATORS  (PRIVATE  CORPORATION)  (continued): 

Mandamus  will  not  issue,  if  liable  to  be  regularly  expelled  on  those 

charges,  §  170. 
Mandamus  will  lie  to  admit  as  a  member  one  having  the  necessary 

qualifications  and  entitled  by  law  to  be  admitted,  §  172. 
Writ  will  not  issue  to  admit  as  a  member  one  who  may  be  regularly 

expelled  for  offenses  then  existing,  §  170. 
Great  certainty  required  in  return  to  alternative  writ  to  restore  an 

expelled  member,  §  275. 
Return  must  state  all  the  facts  necessary  to  show  that  the  removal 

was  legal,  in  proper  manner,  and  for  good  cause,  §  275. 
If  the  expulsion  was  not  at  a  regular  meeting,  the  return  must  show 

that  notice,  general  or  special,  was  given  to  all  members,  §  275. 
If  the  expulsion  was  regularly  conducted,  the  court  will   not  re- 
examine the  merits,  §§  166,  275. 
See  Waiver. 

COSTS : 

Are  awarded  in  the  discretion  of  the  court,  §  310. 

Are  generally  awarded  to  the  successful  party,  §  310. 

Mandamus  will  not  lie  to  make  a  court  alter  its  decision  as  to  costs 

in  a  suit,  §  187. 
Mandamus  will  not  lie  to  a  court  to  set  aside  a  dismissal  for  failure 

to  pay  costs,  §  201. 

COUNCIL  (CITY): 

Mandamus  will  run  to  the  council  of  a  city  — 

to  open  a  street  already  laid  out,  §  113. 

to  act  upon  nominations  submitted  by  the  mayor,  §  113. 

to  approve  a  plat  of  land  laid  out  in  the  city,  §  113. 

to  fix  the  amount  of  official  bonds,  §  113. 

to  meet  in  joint  session  to  appoint  certain  officers,  §  113. 

to  canvass  an  election  and  pass  an  ordinance  therefor,  if  neces- 
sary, §  139. 

to  pass  an  ordinance  to  create  a  fund  to  erect  a  market,  §  113. 

to  agree  on  an  ordinance  for  levying  a  certain  tax,  §  35. 
A  mandamus  will  not  be  granted  to  compel  aldermen  to  attend 

the  meetings  of  the  council,  §§  69,  113. 
Will  not  be  required  by  mandamus  to  elect  officers,  when  the  terms 

thereof  have  expired  before  the  hearing,  §  77. 
The  writ  will  not  issue,  when  a  discretion  allowed  about  doing  the 

act,  §  110. 
See  Tax  (Levy  of). 

TOUNTY  OFFICERS  (MANAGING  BOARD) : 

Mandamus  lies  to  them  to  discharge  duties  imposed  by  law,  §  111. 
only  to  perform  acts  authorized  by  law,  §  111. 


INDEX.  4  1  9 

COUNTY  OFFICERS  (MANAGING  BOARD)  (continued): 
They  have  been  required  by  the  writ  of  mandamus  — 
to  accept  the  lowest  bid  for  a  contract,  §  111. 
to  approve  an  official  bond,  §  111. 
to  correct  an  erroneous  assessment  and  refund  the  money  paid, 

§111. 
to  refund  money  paid  as  a  fine  after  reversal  of  the  judgment. 

§  HI. 
to  admit  a  deed  to  record,  §  111. 
to  divide  a  township,  §111. 
to  pass  on  claims  against  the  county,  g§  32,  36. 
to  audit  accounts  against  the  county  and  issue  warrants.  §  111. 
to  reconvene  and  declare  a  resolution  carried  which  was  declared 

to  be  defeated.  §  111. 
to  determine  the  sheriff's  fees  for  collecting  taxes,  §  111. 
to  fix  rate  of  charges  for  water  for  irrigation,  §111. 
to  summon  a  jury  to  assess  damages  for  condemnation  of  land, 

§111. 
to  hear  and  adjust  the  sheriff's  claim  for  fees,  §  111. 
to  provide  a  house  of  refuge,  §  111. 
to  build  and  complete  a  public  building,  §  111. 
to  renew  a  ferry  license,  when  they  refused  from  mistake  of 

law,  §  39. 
Mandamus  will  not  lie  when  they  are  called  on  to  act  judicially, 

§§  HI,  112. 
Mandamus  will  be  refused,  wlien  appeal  lies  from   their  action, 

§53. 
"When  another  remedy  is  allowed,  no  mandamus  will  lie,  §  54. 
They  cannot  be  compelled  to  require  towns  to  pay  for  the  wrongful 

acts  of  town  officers,  §  111. 
Mandamus  not  he  to  them  to  enter  judgment  on  a  claim  against  the 
county,  when  the  matter  pending  on  appeal  in  a  higher  court, 
§  111. 
Though  they  have  a  discretion  about  repairing  roads,  a  mandamus 

will  lie  if  they  wholly  neglect  to  repair,  §  39. 
They  have  been  held  to  be  acting  judicially  — 

in  granting  a  ferry  license,  when  there  were  two  applicants, 

§112. 
in  appointing  collectors  of  taxes,  §  112. 
in  deciding  whether  a  petition  was  signed  by  enough  legal 

voters,  §  112. 
in  dismissing  a  petition  for  want  of  prosecution,  §  112. 
Their  attorney  cannot  make  a  return  to  an  alternative  writ  in  their 

stead,  §  282. 
See  County  Board  (Clerk  of). 


42)  INDEX. 

COUNTY  BOARD  (CLERK  OF) : 
A  mandamus  will  lie  to  — 

to  sign  an  order  on  the  county  treasurer,  §  121. 
to  transfer  records  and  suits  to  another  county,  §  121. 
to  issue  a  tax  deed,  §  121. 

to  put  the  county  seal  on  a  county  warrant,  §  121. 
to  report  his  fees,  §  121. 

to  record  the  acts  of  the  county  commissioners,  §  121. 
It  will  not  lie  to  correct  the  records  of  the  county  commissioners, 

§121. 
See  County  Officers  (Managing  Board). 

COURT,  CLERK  OF: 

Mandamus  has  issued  to  compel  him  — 
to  issue  a  citation,  §  86. 
to  issue  a  writ  of  assistance,  §  86. 
to  make  out  a  transcript,  §  86. 
to  receive  and  file  a  bond,  §  86. 
to  furnish  copies  of  his  records,  g  86. 
to  issue  an  execution,  g  86. 

but  not  if  the  judgment  is  ambiguous,  §  122. 
Writ  will  be  refused,  when  there  is  another  remedy,  §  122. 

when  suit  on  his  bond  will  compensate,  g  122. 
Writ  generally  refused,  when  his  court  can  compel  him  to  act,  §§  86, 
122. 

COURT  (DISTRICT  OF  COLUMBIA  SUPREME) : 
Can  issue  an  original  writ  of  mandamus,  §  217. 

COURTS : 

Entirely  independent  of  executive  and  legislative  departments,  g  91. 

Common-law  courts  issue  the  writ  of  mandamus,  g  213. 

Writ  issued  by  common-law  courts  of  highest  original  jurisdiction, 

§213. 
Courts  decide  what  acts  are  judicial  and  what  ministerial,  g  108. 
Mandamus  runs  against  inferior  courts  as  to  ministerial  acts,  §  186. 
Mandamus  lies  to  inferior  courts  to  compel  judicial  action,  when 

such  action  is  a  duty,  g  189. 
This  writ  will  issue  to  such  courts  — 
to  hold  terms  thereof,  g  189. 

to  take  jurisdiction  of  a  cause  when  wrongfully  declined,  g  36. 
to  proceed  in  a  cause  when  it  wrongfully  refuses,  g§  203,  204. 
to  proceed  in  a  cause  when  it  has  wrongfully  postponed  the  hear- 
ing, g  204. 
to  render  judgment,  if  there  has  been  unreasonable  delay  in  so 
doing  after  submission  of  cause,  §  204. 
Judicial  action  will  be  ordered,  but  will  not  be  controlled,  §§  32,  187. 


INDEX.  421 

COURTS  (continued): 

Mandamus  will  not  lie  to  review,  reverse  or  correct  errors  in  judicial 
acts,  §  187. 
See  Judicial  Acts. 
Mandamus  will  not  lie  to  review  interlocutory  orders  of  courts, 
-     §  196. 
Remedy  is  by  appeal  or  writ  of  error,  §  196. 

See  Appeal. 
Interlocutory  orders  may  be  reviewed  by  this  writ  in  Alabama, 
§199. 
in  Michigan,  §  200. 

in  Louisiana,  when  necessary  to  prevent  irreparable  injury,  §  198. 
If  a  court  on  a  plea  to  the  jurisdiction  dismisses  the  suit,  appeal  or 

writ  of  error,  and  not  mandamus,  is  the  remedy,  §  203. 
A  court  will  be  compelled  by  this  writ  to  obey  the  decree  of  the  ap- 
pellate court,  §  189. 
A  court  will  not  grant  this  writ  to  enforce  the  process  of  an  inferior 

court,  except  in  cases  of  urgent  necessity,  §  84. 
Courts  cannot  control  public  funds  in  the  hands  of  officers  against 

the  political  power  in  administering  the  public  finances,  §  89. 
When  action  is  discretionary,  mandamus  will  not  lie  to  a  court,  £  33. 
A  mandamus  may  run  to  an  inferior  court  to  review  its  judicial 
action  — 
in  England  to  some  very  subordinate  courts,  ^  39. 
when  a  superior  court  has  supervisory  control  over  it,  §  39. 
when  fraud  or  prejudice  has  influenced  such  action,  §§  40,  41. 
When  referred  to,  records  of  courts  should  accompany  the  pleadings 

in  mandamus  as  exhibits,  §  261. 
See  Appeal;  Bill  of  Exceptions;  Judicial  Acts;  Judgments; 
Jurisdiction;  Docket;    Eminent  Domain;   Oaths;   Records; 
Supersedeas  Dockets. 

COURTS  (APPELLATE): 

Unless  court  has  appellate  jurisdiction  of  the  matter,  it  will  not  by 

mandamus  review  the  action  of  another  court.  §  313. 
On  appeal  in  mandamus  no  new  defense  can  be  urged,  §  307. 
If  entitled  to  writ  at  the  time,  judgment  will  be  affirmed,  though 
was  not  entitled  to  the  writ  earlier,  §  307. 

COURTS  (FEDERAL  CIRCUIT) ; 

Can  issue  mandamus  only  in  aid  of  a  jurisdiction  already  acquired, 
§217. 
except  by  statute  against  Union  Pacific  Railway,  §  217. 
Can  issue   the  writ  to  district  courts  only  in  aid  of  their   appellate 

jurisdiction,  §  217. 
Can  compel  municipalities  to  levy  taxes  to  pay  their  judgments.  £  S\  7. 
Such  levy  of  taxes  is  merely  a  mode  of  enforcing  a  judgment  §  217. 


422  INDEX. 

COURTS  (FEDERAL  CIRCUIT)  (continued): 

Can  issue  tins  writ  to  all  state  officers,  except  judicial,  §  219. 

Can  use  the  same  remedies  as  the  state  courts,  §  219. 

Cannot  prevent  state  courts  from   controlling  their  inferior  courts, 

§220. 
Their  process  cannot  be  interfered  with  by  state  courts,  §  219. 
As  being  original  process  they  cannot  issue  a  mandamus  — 

to  compel  a  register  of  a  land-office  to  issue  a  certificate  of  pur- 
chase, §  217. 
to  make  state  officers  levy  a  tax  to  pay  bonds,  §  217. 
to  compel  a  state  officer  to  issue  a  certificate  for  taxes  improp- 
erly paid,  §  217. 
to  compel  a  postmaster  to  send  matter  through  the  mails  at  cer- 
tain rates,  §  217. 
See  Courts  (State)  ;  Removal  of  Causes  ;  Taxes  (Levy  of). 

COURTS  (FEDERAL   CIRCUIT  OF  APPEALS); 

No  limitation  on  appeals  as  to  amount  involved,  §  308. 

"OURTS  (STATE) : 

Cannot  issue  this  writ  to  a  federal  officer,  §  219. 

Cannot  restrain  process  from  a  federal  court,  §  219. 

Cannot  prevent  state  officers  from  collecting  a  tax,  as  ordered  by  a 

federal  court,  §  218. 
Will  not  issue  a  subpoena  to  appear  before  a  federal  officer,  §  219. 
Can  require  a  state  officer  to  perform  any  ministerial  duty,  §  219. 
May  require  a  state  officer  — 

to  levy  a  tax  to  pay  a  federal  judgment,  §  219. 

to  pay  a  creditor  money  collected  to  be  paid  on  his  federal 

judgment,  §  219. 
to  erase  certain  records  as  ordered  by  a  federal  court  in 
bankruptcy,  §  219. 
See  Courts  (Federal  Circuit)  ;  Removal  of  Causes. 

COURT  (UNITED  STATES  SUPREME): 

Can  generally  issue  a  mandamus  only  in  aid  of  appellate  jurisdic- 
tion, §  216. 
Cannot  issue  a  mandamus  to  a  state  court,  §  216. 
Will  issue  this  writ  to  a  federal  court  to  set  aside  the  disbarment  of 

an  attorney,  §216. 
In  aid  of  appellate  jurisdiction  has  issued  this  writ  to  federal  circuit 
courts  — 
to  set  aside  the  erroneous  dismissal  of  an  appeal,  §  216. 

to  sign  a  bill  of  exceptions,  §  216. 

to  reinstate  a  case  improperly  disnrssed,  §  216. 

to  sign  the  record  of  a  judgment,  §  216. 

to  allow  an  appeal,  §  216. 

to  enforce  a  decree  erroneously  suspended  during  appeal,  §  216. 

Limitations  on  appeals  as  to  amount  involved  now  removed,  §  308. 


INDEX.  423 

CRIMINAL  PROCEEDINGS: 

Mandamus  will  issue  to  interfere  in  criminal  proceedings  when  nec- 
essary to  protect  civil  rights,  §  61. 
The  writ  will  issue  to  compel  courts  to  proceed  in  and  dispose  of 
criminal  cases,  §§  61,  203. 

D. 

DAMAGES: 

Only  awarded  when  statute  allows,  §  310. 

Suit  for,  bars  mandamus,  and  vice  versa,  §  311. 

When  suit  for,  plainly  not  sustainable,  a  mandamus  has  been  allowed, 

§  811 
See  Waiver. 

DEATH : 

Abates  mandamus  with  private  relator,  §  233. 
Does  not  abate  mandamus  of  relator  who  is  an  officer,  §  233. 
Does  not  abate  mandamus  when  copartners  are  relators,  §  233. 
See  Officers. 

DEBTS : 

Mandamus  not  lie  to  compel  payment  of  debts,  §  17. 
Exceptions,  when  ministerial  officer  has  money  in  his  hands  which 
it  is  his  duty  to  pay  to  party  entitled  to  it,  §  18. 
to  public  officers  and  corporations  to  enforce  a  duty  imposed  on 
them  by  law  when  no  other  way  of  collecting,  §  19. 
Assignee  of  part  of  a  public  debt  cannot  compel  officers  to  issue  a 
warrant  to  him,  §  111 

DECISION : 

Mandamus  not  lie  to  a  court  to  review  any  decision  involving  facts. 

§187. 

DECREE : 

Mandamus  refused  to  enter  decree  on  report  of  referees,  §  187. 
Mandamus  granted  in  Michigan  to  vacate  order  setting  aside  a  decree, 

§  200. 
Writ  lies  to  enter  a  decree  if  case  has  been  heard,  §  204. 
See  Equity. 

DE  FACTO  INCUMBENT : 

Generally  held,  mandamus  not  lie  to  remove,  §  142. 

Must  have  color  of  right,  §  143. 

An  office  is  full  de  facto  when  the  party  elected  has  been  admitted 
to  the  office,  whether  the  election  legal  or  not,  but  such  illegality 
must  be  consistent  with  honesty  of  purpose,  §  143. 

Writ  will  lie  to  seat  officer  if  incumbent  only  holding  till  his  succes- 
sor is  elected,  §  143. 

See  Elections;  Quo  Warranto. 


424  INDEX. 

DEFAULT: 

Party  must  be  in,  before  a  mandamus  will  issue,  §  221. 
Tbreats  or  determination  prior  to  time  not  a  default,  §  221. 
Mandamus  not  lie  to  set  aside  a  default  and  inquest,  §  187. 
Contra  in  Michigan,  §  200. 
See  Refusal. 

DELAY : 

When  delay  in  acting  not  unreasonable,  mandamus  refused,  §  70. 

Mandamus  lies  to  act  with  reasonable  promptness,  §  70. 

Writ  lies  to  a  court  to  render  a  judgment,  if  unreasonable  delay  after 

submission  of  cause,  §  204. 
If  more  time  ought  to  be  allowed,  writ  will  be  refused,  §  73. 
Mandamus  not  lie  to  pay  damages  sustained  while  city  hesitates 
about  abandoning  condemnation  proceedings,  §  135. 
See  Laches  ;  Time. 

DEMAND : 

Demand  to  perform  duty  must  precede  application  for  writ,  §  222. 

Such  demand  must  be  specific,  §  222. 

Demand  must  be  confined  to  act  to  be  done,  §  222. 

When  an  improper  requirement  added,  the  latter  has  been  rejected, 

§258. 
Personal  demand  not  necessary  to  perform  public  duties  when  no 

one  with  duty  to  make  the  demand,  §  224. 
In  public  duties  the  law  makes  the  demand,  §  224. 
Demand  was  considered  unnecessary  — 

when  colored  children  were  excluded  from  public  schools,  §  224. 
when  a  city  council  failed  to  order  an  election  to  fill  a  vacancy 

among  its  members,  §  224. 
when  a  municipality  failed  to  oi'der  the  levy  of  a  tax  to  pay  a 
judgment  whereon  an  execution  was  returned  nulla  bona, 
§224, 
when  a  city  failed  to  order  a  tax  to  pay  bonds  on  which  the 
creditor  had  obtained  a  judgment,  §  224. 
Demand  should  be  made  when  proper  mode  of  performance  is  doubt- 
ful, §  224. 
Demand  not  to  be  made  till  time  allowed  for  action  has  expired, 

§  226. 
Demand  may  be  made  before  default,  if  otherwise  a  failure  of  jus- 
tice, §  227. 
Alternative  writ  must  state  that  demand  was  made,  §  257. 
If  personal  demand  not  necessary,  facts  must  be  alleged  which  so 

show,  §  257. 
Demand  to  levy  a  tax  not  stating  amount  of  liability  is  insufficient, 

§257. 
See  Alternative  Mandamus;  Issues. 


INDEX. 


425 


DE  MOLEST ANDO  (WRIT): 

Mandamus  will  not  take  the  place  of,  §  43. 

DEMURRER : 

Lies  if  mandatory  part  of  alternative  writ  larger  than  warranted  — 
by  the  recitals  of  the  writ,  §  2(50. 
or  by  the  statute,  §  260. 

or  demands  several  acts  all  of  which  cannot  be  legally  required, 
§  260. 
Under  early  practice  concilium  took  the  place  of  a  demurrer,  §  288. 
Under  early  practice,  if  the  writ  held  good  on  concilium,  a  peremp- 
tory writ  issued  at  once,  §  268. 
Motion  to  quash  is  equivalent  to  a  demurrer,  §  268. 
In  important  questions  a  demurrer  was  preferred,  §  269. 
In  America  a  demurrer  is  allowed  to  alternative  writ.  §  270. 
Return  may  also  raise  legal  propositions,  as  a  demurrer,  §  270. 
If  demurrer  to  alternative  writ  is  sustained,  relator  may  amend, 

§271. 
If  demurrer  to  alternative  writ  overruled,  a  return  is  allowed,  §  272. 
Sometimes  court  requires  first  to  be  informed  of  nature  of  return, 

§272. 
Demurrer  may  be  filed  to  a  return,  §  285. 
Demurrers  in  mandamus  subject  to  same  rules  as  other  demurrers, 

§286. 
Demurrer  to  return  confesses  its  allegations,  §  286. 
Demurrer  runs  back  to  first  defective  pleading.  §  286. 
If  part  of  return  good,  judgment  on  it  must  be  for  respondent, 

§286. 
If  demurrer  to  return  sustained,  respondent  may  amend,  §  287. 
If  demurrer  to  return  overruled,  generally  held  relator  may  reply, 

§288. 
Demurrer  lies  to  reply  taking  issue  on  immaterial  questions,  §  289. 
See  Concilium;  Motions  to  Quash. 

DISBURSING   OFFICERS: 

Mandamus  lies  to  pay  accounts  properly  allowed,  §  135. 

Writ  not  lie  to  pay  account  prior  to  audit,  if  such  audit  required, 
§135. 

No  audit  required  before  paying  salaries  fixed  by  law,  §  135. 

On  mandamus  to  pay  properly  allowed  account,  court  may  investi- 
gate legality  of  claim,  but  not  amount,  §  135. 

Writ  refused  if  no  money  on  hand,  §  135. 

Writ  will  not  issue  to  pay  when  money  received,  §  135. 

Writ  will  issue  if  money  exhausted  by  improper  payments,  §  135. 

Writ  will  lie  to  indorse  on  claim  refused  for  lack  of  funds,  when  law 
requires  such  indorsement,  §  135. 

Writ  will  not  lie  when  discretion  allowed  to  officer,  §  135. 


4:26  INDEX. 

DISBURSING  OFFICERS  (continued): 

Disbursing  officer  cannot  refuse  to  pay  when  legislature  provides 
therefor,  though  state  not  legally  liable,  §  135. 

Writ  not  lie  to  officer  who  has  turned  over  the  funds  to  his  suc- 
cessor, §  135. 

If  reasonable  doubt  as  to  duty  to  pay,  or  right  of  relator  to  receive, 
the  writ  will  be  refused,  §  135. 

See  Payment;  Treasurer;  Treasurer  (County);  Treasurer 
(Township). 

DISCRETION  OF  COURT : 

Court  has  discretion  about  issuing  writ,  though  prima  facie  right 

shown,  §  62. 
Discretion  must  be  sound,  guided  by  law  and  regular,  §  69. 
No  inflexible  rule  to  govern  court's  discretion,  §  62. 
Court  will  consider  the  exigency,  nature  and  extent  of  injury  which 

will  follow  a  i-efusal,  etc.,  §  63. 
Writs  will  be  issued  only  in  cases  of  necessity,  §  67. 
The  court  in  its  discretion  will  refuse  to  issue  the  writ  — 
if  the  duty  is  vague,  §  31. 

if  the  right  sought  has  become  a  mere  abstract  right,  §  66. 
if  the  act  can  be  of  no  substantial  or  practical  benefit,  §  66. 
unless  necessary  to  secure  ends  of  justice  or  some  useful  object, 

§66. 
unless  substantial  interests  or  substantial  rights  are  involved, 

§66. 
if  merely  to  l-elieve  party  from  effects  of  his  own  mistakes,  §  66. 
unless  substantial  relief  can  be  given,  §  66. 
if  all  available  means  to  attain  object  desired  have  not  been 

tried,  §  67. 
if  respondent  admits  he  is  willing  to  do  the  act  desired,  §  67. 
if  the  act  sought  has  already  been  done,  §  67. 
if  the  act  sought  is  voluntarily  done  after  the  hearing,  §  67. 
if  the  proceedings  are  collusive  and  fictitious,  §  68. 
unless  good  motives  and  correct  actions  are  shown,  §  68. 
if  action  brought  to  obtain  opinion  of  court  on  point  of  law,  §  68. 
to  determine  a  fanciful  question,  §  68. 
for  curiosity,  §  68. 
as  a  mere  matter  of  taste,  §  68. 
to  gratify  the  relator's  spite,  §  68. 
to  direct  the  general  course  of  conduct  of  an  officer,  §  69. 
when  justice  will  not  be  subserved  thereby,  §  72. 
when  it  will  operate  harshly,  g  73. 
when  it  will  work  injustice,  §71. 
when  it  will  be  unavailing,  §  75. 
when  the  act  is  physically  impossible,  §  75. 


INDEX. 


427 


DISCRETION  OF  COURT  (continued) : 

The  court  in  its  discretion  will  refuse  to  issue  the  writ  (continued)  — 
to  compel  a  technical  compliance  with  the  law  contrary  to  its 

spirit,  §  71. 
when  respondents  can  legally  nullify  it  by  subsequent  action, 

§74. 
when  the  respondents  have  already  set  themselves  in  motion, 

§70. 
when  the  relator  has  investigated,  authorized  or  approved  of  the 
act  complained  of,  §  68. 
Query :  will  a  court  compel  action  after  the  time  limited  for  per- 
formance, §s  79,  80. 
If  the  act  will  become  possible,  the  court  will  extend  the  time  for  a 

return,  §  76. 
The  writ  will  be  refused  if  the  respondent  has  already  gone  out  of 

office,  §  78. 
The  court  will  protect  the  respondent's  rights  — 

Respondents  will  not  be  required  to  subject  themselves  to  suits 

for  trespass,  §  81. 
Respondents  will  not  be  required  to  bring  suits,  unless  they  are 

indemnified,  §  81. 
Parties  will  not  be  harassed  by  suits,  §  82. 
Writ  will  be  refused,  if  on  account  of  suits  pending  it  would  be 

oppressive,  §  82. 
Party  will  not  ordinarily  be  required  to  disobey  an  injunction, 

§82. 

Courts  reluctant  to  grant  this  writ,  when  third  parties  not  be- 
fore the  court  may  be  injuriously  affected,  §  8a 

Writ  usually  refused,  if  another  tribunal  can  compel  the  act  de- 
sired, §§  84,  85. 

Court  will  not  grant  the  writ,  commanding  A.  to  order  B.,  §  86. 

Court  will  refuse  the  writ,  if  there  has  been  unreasonable  delay, 
§87. 
Discretion  of  court  denied,  when  government  is  relator,  §  88. 

DISCRETIONARY  ACTS: 

The  writ  will  not  issue,  when  the  officer  has  a  discretion  whether  or 

not  to  do  the  act,  §  110. 
See  Judicial  Acts. 
DISCRIMINATION:  See  Common  Carriers;  Gas ;  Irrigation ;  Rail- 
roads; Telephones;  Public  Use. 

DISFRANCHISEMENT : 

Means  removal  from  membership  of  a  corporation,  §  137. 

See  Corporation  (Public)  ;  Corporator  (Private  Corporation). 


428  INDEX. 

DISMISSAL: 

A  mandamus  was  refused  to  compel  a  court  to  allow  a  plaintiff  to 

dismiss  his  suit,  §  196. 
A  mandamus  was  granted  to  compel  a  court  to  set  aside  its  dismissal 

of  an  appeal  from  a  nonsuit,  §  201. 

DOCKET : 

Mandamus  refused  to  compel  a  court  to  reinstate  a  cause  on  its 
docket,  §  187. 

Mandamus  granted  to  a  court  to  reinstate  on  its  docket  a  cause  im- 
properly dismissed,  §§  187,  189,  204. 

Writ  refused  in  Alabama  to  compel  a  court  to  strike  a  cause  from 
its  docket,  §§  199,  210. 

DOCUMENTS  (PUBLIC) :  See  Books  (Public). 

DUTY: 

Mandamus  lies  to  enforce  obedience  to  common  law,  statutes  and 

charters,  §§  13,  31. 
Writ  lies  to  enforce  duties  resulting  from  office,  trust  or  station, 

§13. 
There  must  be  a  plain  dereliction  of  duty,  £  21. 
Mandamus  creates  no  new  duty,  §§  50,  60. 

It  issues  only  to  compel  the  performance  of  what  was  a  duty  with- 
out the  writ,  §  50. 
Performance  of  the  duty  must  be  obligatory,  §§  27,  57. 
Duty  may  be  mandatory,  though  in  language  of  statute  permissive' 

8  34. 
Character  of  duty  determines  how  far  it  may  be  enforced  bv  the  writ, 

§29. 
Duty  must  be  plain  and  positive,  §§  57,  158. 
Duty  must  be  clearly  enjoined  by  law,  §  57. 
If  the  duty  under  the  law  is  vague,  the  writ  will  be  denied,  §  31. 
When  a  substantial   doubt  as  to  the  duty,  the  writ  will  be  refused, 

§57. 
Such  doubt  is  a  doubt  by  the  court  after  examination,  §  57. 
Court  will  decide  whether  the  duty  is  judicial  or  ministerial,  §  108. 
When  party  has  a  discretion  whether  to  do  or  not,  the  writ  will  not 

issue,  §  33. 
Writ  cannot  order  party  to  do  illegal  act,  though  it  was  once  legal, 

§60. 
Writ  will  not  issue  when  law  cieating  the  duty  has  been  repealed, 

§78. 
Writ  is  generally  refused,  if  respondent  has  gone  out  of  office.  §  78. 
Writ  will  not  lie  to  officer  to  disregard  certain  papers  filed  with  him, 

where  there  is  no  law  for  such  filing.  §  179. 


INDEX. 


4-2'.) 


DUTY  (continued): 

The  writ  will  not  lie  to  count  votes  cast  at  an  election  if  there  was 

no  law  for  such  an  election,  §  184. 
United  States  can  impose  no  duty  on  a  state  officer,  and  compel  him 

to  perform  it,  §  219. 
See  Term  of  Office;  Time, 


E. 

ECCLESIASTICAL  TRIBUNALS : 

In  America  mandamus  does  not  run  to,  §  176, 
Their  judgments  conclusive  in  purely  ecclesiastical  offenses,  §  176. 
Private  corporations  subject  to  them  by  charter  must  obey  their  de- 
cisions, §  176. 
Courts  will  interfere  as  to  such  obedience  only  when  property  rights 

involved,  176. 
Even  then  their  decrees  conclusive,  if  they  had  jurisdiction,  §  176. 
Regularity  of  proceedings  not  inquired  into,  §  176. 
Decisions  on  doubtful  and  technical  affairs  conclusive,  even  though 

comprising  jurisdictional  facts,  §  176. 

ELECTIONS : 

Mandamus  lies  to  call  elections  at  time  fixed  by  law,  §  138. 
elections  to  fill  vacancies,  §  138. 

an  election,  if  election  already  held,  clearly  colorable  and  void, 
§  138. 
An  election  based  on  a  palpable  disregard  of  law  will  be  ignored. 

§143. 

Mandamus  will  not  lie  to  hold  an  election,  if  one  has  already  been 
held,  though  of  doubtful  validity,  §  138. 

Writ  will  not  lie  to  hold  an  election,  if  there  is  already  a  de  facto  in- 
cumbent of  the  office,  unless  no  other  remedy,  §  138. 

See  Elections  (Canvassers);  Offices. 

ELECTIONS  (CANVASSERS) : 

Mandamus  lies  to  canvass  votes  cast  at  an  election.  §$  139,  178. 

Must  canvass  all  the  votes  cast,  §  1^9. 

May  reject  ballots  void  on  their  face,  §  179. 

May  reject  ballots  not  conforming  to  the  law,  §  179. 

May  correct  plain  clerical  mistakes  on  the  papers,  §  179. 

Must  confine  themselves  to  the  papers  before  them,  §  179. 

May  notice  facts  of  general  notoriety.  §  179. 

Most  of  their  duties  are  ministerial,  §  178, 

May  decide  whether  returns  received  are  genuine,  §  179. 

They  have  a  discretion  when  meaning  of  ballot  is  doubtful,  §  179. 

when  words  in  a  return  are  uncertain,  §  179. 
Surplusage  in  election  returns  should  be  rejected,  §  179. 


430  INDEX. 

ELECTIONS  (CANVASSERS)  (continued): 

Surplusage  in  returns  canuot  be  used  to  contradict  them,  §  179. 
The  uncertainty  must  be  great  to  justify  the  rejection  of  a  return, 

§179. 
In  mandamus  proceedings  courts  will  not  hear  evidence  of  facts  re- 
specting a  return,  §  180. 
Such  evidence  was  once  allowed,  §  180. 
Matters  of  general  notoriety  have  been  considered,  §  180. 
Mandamus  lies  to  declare  result  of  an  election,  §  181. 
Mandamus  lies  to  issue  a  certificate  of  election,  §§  140,  183. 
Immaterial  that  a  certificate  has  already  been  issued,  §  140. 
Courts  try  to  sustain  election  returns,  §  179. 

State  officers  must  canvass  returns  of  congressional  elections,  §  183. 
Peremptory  writ  will  specificially  direct  what  to  do,  §  183. 
to  count  votes,  §  183. 
to  omit  votes,  §  183. 
Mandamus  lies  to  determine  result  of  election  by  lot  when  the  law 

so  provides,  §  181. 
When  canvassers  are  allowed  judicial  functions,  the  writ  will  not 

lie,  §§  140,  184. 
Writ  not  lie  when  adequate  remedy  by  appeal  or  contest,  §  184. 
to  count  votes  if  office  already  legally  filled,  §  184. 
to  count  votes  if  no  legal  authority  for  an  election,  §  184. 
May  be  required  to  reconvene,  though  adjourned  sine  die,  §§  52,  185. 
though  some  members  gone  out  of  office,  §  185. 
but  not  when  term  has  by  law  expired,  S|§  77,  185,  241. 
Cannot  be  reconvened  for  any  purpose  if  law  creating  has  been  re- 
pealed, §§  78,  241. 
Will  not  be  required  to  recanvass  votes  if  term  of  officer  elected  has 

already  expired,  §  77. 
Writ  may  issue  to  successors  if  they  can  discharge  the  duties,  §  185. 
See  Offices. 

ELIGIBILITY : 

When  title  to  office  not  triable  in  a  mandamus,  the  question  of  re- 
lator's eligibility  to  tbe  office  cannot  be  raised,  §  153. 

EMINENT  DOMAIN: 

When  parties  have  such  rights,  a  mandamus  will  run  against  them, 
§§  27,  27a. 

Writ  issued  to  county  officers  to  summon  jury  to  assess  damages  for 
land  condemned,  §  111. 

Writ  issued  to  court  to  appoint  commissioners  to  condemn  land  and 
assess  damages,  §  189. 

Writ  not  lie  to  city  to  pay  damages  accruing  from  delay  in  con- 
demnation proceedings,   till  judgment  obtained  therefor,  §  135. 

Writ  lies  to  appoint  appraisers  to  assess  the  damages  from  a  right  of 
way,  §  109. 


INDEX.  431 

EMPLOYEE: 

Mandamus  refused  to  enforce  contract  with  public  board,  §  16. 

EQUITY : 

Mandamus  will  not  issue  from  court  of,  §  3. 

Writ  never  granted  to  enforce  equitable  rights,  §  56. 

Equitable  transferee  cannot  by  mandamus  compel  transfer  of  stock 
on  books  of  the  corporation,  §  56. 

Equitable  remedy  no  bar  to  a  mandamus.  §  55. 

Remedy  in  equity  appeals  to  discretion  of  court  about  issuing  a  man- 
damus, §  55. 

When  cause  pending  in  equity,  and  such  court  better  adapted  to 
settle  the  rights  of  the  parties,  this  writ  will  be  refused,  §  82, 

Bill  in  equity,  asking  an  injunction  against  a  mandamus,  will  not  be 
received  as  a  return  therein.  §  281. 

Writ  not  lie  to  court  to  conform  to  equity  rules  in  a  pending  cause, 

§§187'196'  •  •*        0«m 

Writ  refused  to  grant  a  rehearing  in  an  equity  case,  §1*1. 

Writ  not  lie  to  equity  court  to  dismiss  a  cause,  as  parties  agreed  to 

Writ  gmnted  to  chancellor  to  order  money  restored  after  the  decree 

was  reversed  on  appeal,  §  189. 
In  Michigan  will  only  interfere  in  equity  in  extreme  cases,  &  ~0U. 

ERROR  (WRIT  OF) : 

Mandamus  cannot  be  used  as  a  writ  of  error,  §  313. 
If  informal,  remedy  is  motion  to  vacate,  and  not  mandamus  to  en- 
force decree,  §  201.  

Mandamus  not  lie  to  review  decree,  merely  because  writ  of  error  not 

allowed.  §  202.  . 

Whether,  in  mandamus  proceedings,  appeal  or  writ  of  error  lies,  de- 
pends on  local  statutes,  §  306. 

See  Appeal;  Appeal  in  Mandamus  Proceedings 

EVTlImlamus  not  lie  to  receive  evidence  already  rejected  on  trial  of 

cause,  §§  187,  196. 
EXCEPTIONS:  See  Bill  of  Exceptions. 

EXECUTION : 

Writ  refused  to  vacate  order  setting  aside  an  execution,  §  187. 

to  set  aside  dismissal  of  rule  to  show  cause  why  execution 
should  not  issue,  §  201. 
Writ  refused  to  vacate  stay  of  execution,  when  property  already 
levied  on  in  another  suit,  §  187. 


432  index. 

EXECUTIVE  OFFICERS: 

If  refuse  to  act  at  all,  mandamus  lies  to  compel  action,  §  32. 

Creditors  of  a  state  cannot  by  a  mandamus  assume  to  exercisa  a  su- 
pervising control  of  treasurer  and  auditor  in  conduct  of  their  of- 
fices, §  66. 

Writ  issues  to  all  executive  officers,  outside  of  the  governor,  §  99. 

Writ  not  granted  in  Texas  or  Minnesota  to  head  of  any  executive 
department,  §  102. 

When  head  of  department  is  acting  as  agent  of  the  governor,  this 
writ  will  not  run  to  him,  unless  it  will  against  the  governor,  §  99. 

See  Auditor  of  State;  Comptroller  of  State;  Governor; 
Secretary  of  State;  State  Land  Office  (Commissioner); 
State  Treasurer. 

EXECUTIVE  OFFICERS  (UNITED  STATES): 

Mandamus  lies,  if  officer  refuses  to  take  any  action,  §  101. 
Writ  lies  to  compel  officer  to  obey  decision  on  appeal  of  superior  ap- 
pellate officer.  §  101. 
Writ  not  lie  relative  to  ordinary  discharge  of  official  duties,  §  100. 
to  issue  a  patent  for  public  lauds,  §  100. 
to  reverse  a  decision  refusing  an  increase  of  pension,  §  100. 
to  pay  amount  allowed  claimant  by  another  department,  §  100. 
to  pay  claimant  amount  received  from  foreign  government  in 
satisfaction  of  claim,  §  100. 
Writ  not  he  to  re-issue  a  patent  to  an  assignee  after  deciding  not  to 

be  a  proper  assignee  under  the  law,  §  100. 
Writ  will  issue  to  all  federal  executive  officers,  except  when  acting 

as  political  or  confidential  agent  of  the  president,  §  99. 
See  Secretary   of  Interior;    Secretary  of  State;    Patents 
(Commissioner);    Pensions   (Commissioner);    Postmaster-Gen- 
eral; President. 

EXHIBITS : 

Documents  of  importance  should  accompany  petition  as  exhibits, 

§261. 
Records  of  courts  should  appear  as  such,  §  261. 
Usually  charters  and  by-Jaws  of  private  corporations  accompany  a 

petition  to  restore  an  expelled  member  or  the  return,  §  261. 
Bill  of  exceptions  should  accompany  a  petition  to  compel  its  signing, 

§261. 

EXPULSION:    See  Corporations  (Public);   Corporators  (Private 
Corporations'. 


INDEX.  433 


F. 


FALSE  RETURN  (ACTION  FOR) : 

Relator  allowed  an  action  for  a  false  return  to  the  alternative  writ. 

§  268. 
Such  action  to  be  brought  in  the  king's  bench,  §  268. 

Judgment  necessary  first  on  the  sufficiency  of  the  return,  £  268. 

If  relator  won  the  suit,  a  peremptory  writ  issued  at  once.  §  268. 

If  a  corporation  was  the  respondent,  the  action  might  be  brought 

against  it  or  against  any  particular  corporator,  §  268. 
Such  action  now  obsolete,  §  268. 

FRANCHISES : 

Mandamus  runs  against  those  holding  public  franchises,  §  27. 
Must  first  have  assumed  the  franchises,  if  not  obligatory  to  do  so. 

§27. 

FUNCTION : 

Writ  issued  in  England  to  protect  a  function,  §  21. 
If  emoluments  attached,  stronger  disposition  to  issue  the  writ,  §  21. 
In  America,  such  function  must  be  associated  with  public  rights  or 
offices,  §  22. 
Some  exceptional  rulings,  §  22. 
The  writ  issues  to  protect  a  function  when  statute  so  provides,  §  22. 
See  Public  Functions. 

G. 

GAS: 

Mandamus  will  issue  to  furnish  gas  upon  payment  therefor,  §  162. 

GOOD  FAITH: 

Mandamus  will  be  refused,  unless  there  is  a  serious  contest,  §  66. 
Relator  must  satisfy  court  that  application  bona  fide  and  for  good 

purpose,  §  68. 
Writ  will  be  refused,  if  proceedings  tainted  with  fraud  and  cor- 
ruption, §  69. 
illegality,  §  69. 
Writ  to  issue  an  execution  will  be  refused,  when  really  brought  to 

contest  the  legality  of  the  consolidation  of  two  cities,  §  69. 
See  Discretion  of  Court. 

GOVERNMENT : 

May  always  have  the  writ  when  asked  in  matters  pubhci  juris,  §  88. 
Legislative,  executive  and  judicial  departments  entirely  independent, 

§91. 
This  writ  never  runs  against  the  government,  g  89. 
Writ  not  granted,  if  government  a  necessary  respondent,  §  89. 

28 


434  INDEX. 

GOVERNMENT  (continued) : 

This  writ  will  not  issue  against  the  government  by  indirection  by 

issuing  it  against  public  officers,  §  89. 
Writ  has  been  refused  to  compel  the  government  — 
to  make  a  contract,  §  89. 
to  fulfill  its  contract,  §  89. 

to  deliver  the  laws  to  public  printer  to  print,  §  89. 
to  pay  out  money  in  advance  of  an  appropriation,  §  89. 
to  pay  over  proceeds  of  a  tax  to  the  county  treasurer,  §  89. 
to  pay  certain  claims  after  money  otherwise  appropriated,  §  89. 
Courts  cannot  control  public  funds  in  the  hands  of  officers  against 
the  political  power  in  administering  governmental  finances,  §  89. 
Officer  cannot  refuse  to  pay  over  funds  when  the  government  is  will- 
ing, §  90. 
Writ  not  granted  when  government  is  a  necessai-y  respondent,  §  89. 
Whether  the  government  has  impaired  the  obligation  of  its  contract 
with  the  relator  cannot  be  inquired  into  in  a  mandamus  proceed- 
ing against  its  officer,  where  government  not  a  party,  §  105. 
Government  appears  in  such  proceedings  by  its  law  officer,  §§  229,  230. 
In  mandamus  proceedings  by  the  government,  a  municipality  can- 
not urge  as  an  offset  a  debt  due  to  it  from  the  government,  §  89. 
A  mandamus  cannot  issue  from  a  federal  court  to  a  state,  directly  or. 
indirectly,  §  98. 

GOVERNOR: 

Decisions  vary  as  to  whether  this  writ  will  run  against  a  governor, 

§§  93,  94,  95,  96. 
This  writ  has  been  issued  to  a  state  governor  — 
to  commission  officers,  §  93. 
to  draw  a  warrant  for  salary,  §  93. 
to  issue  state  bonds  to  a  corporation,  §  93. 
to  authenticate  a  bill,  §  93. 
to  issue  a  proclamation,  §  93. 
to  sign  a  patent  for  land.  §  93. 
to  perform  a  duty  with  other  officers,  §  93. 
to  perform  a  duty  which  might  have  been  imposed  on  others, 
§93. 
contra,  §  94. 
when  he  voluntarily  submits  to  court's  jurisdiction,  §  94. 
contra,  §  94. 
Deductions  from  the  decisions,  §  97. 

This  writ  can  issue  from  a  federal  court  to  a  state  governor,  §  98. 
This  writ  will  not  lie  in  a  federal  court  to  a  state  governor,  when  it 

is  really  against  the  state,  §  98. 
If  the  governor  is  made  a  co-respondent,  when  such  writ  is  not  al- 
lowed to  issue  against  him,  the  writ  will  be  dismissed,  §  234a. 
See  Executive  Officers. 


INDEX.  435 

GUARDIAN: 

Mandamus  lies  to  a  court  to  appoint  a  guardian  for  a  non  compos 
defendant  to  a  suit,  §  189. 

H. 

HABEAS  CORPUS: 

Mandamus  lies  to  court  before  whom  a  prisoner  is  brought  on  habeas 

corpus,  to  hear  the  evidence,  §  204. 
Mandamus  refused  to  court  to  hear  application  of  party  for  a  habeas 
corpus,  when  it  has  already  heard  him  on  an  application  for  bail- 
§189. 
Mandamus  refused  to  make  a  court  issue  a  writ  of  habeas  corpus, 
%  187. 
Contra,  189. 
When  party  committed  for  contempt  in  mandamus  proceedings, 
wherein  the  court  had  no  jurisdiction,  habeas  corpus  lies  to  re- 
lease, §  302. 

HARBOR : 

Writ  lies  to  pay  the  expenses  of  the  construction  of  a  public  harbor, 
§  129. 

HIGHWAYS: 

Mandamus  lies  to  officials  to  perform  their  duties  relative  to  high- 
ways. §  116, 

Such  duties  are  included  as  laying  out  a  road  or  opening  a  high- 
way. §  116. 

Writ  lies  to  keep  streets  and  roads  in  repair  and  to  remove  obstruc- 
tions therefrom,  §  116. 

Writ  lies  to  furnish  road  overseers  with  necessary  implements,  §  111. 

Writ  lies  to  grant  an  application  to  establish  a  private  road,  §  116. 

Writ  lies  to  draw  a  warrant  for  damages  caused  by  constructing  a 
road,  §  114. 

Writ  will  not  lie  when  the  duties  are  discretionary.  ^  116. 

This  writ  will  not  lie  when  the  law  has  provided  another  remedy, 
§  116. 

Officers  will  not  be  required  to  commit  a  trespass.  §  116. 

Officers  will  not  be  required  to  subject  themselves  to  an  action  for 
trespass,  g§  81,  11 6. 

Will  not  be  required  by  this  writ  to  layout  a  highway  when  the  pro- 
ceedings have  been  stayed  by  certiorari)  £  57. 

Will  not  be  required  to  open  a  highway  which  their  predecessors 
laid  out  without  authority,  §  60. 

Though  discretion  granted  as  to  repairs  they  cannot  wholly  be  neg- 
lected, §  39. 

An  alternative  mandamus  to  opeu  a  road  should  so  describe  it  that 
it  may  be  thereby  identified,  §  256. 

See  Bridges  (Public). 


436  INDEX. 

I. 

INDICTMENT : 

Is  not  generally  considered  a  bar  to  a  mandamus,  §  53. 
Writ  granted  to  set  aside  order  quashing  an  indictment  alleged  not 
to  be  properly  found,  §  201. 

INJUNCTION: 

Contrasted  with  a  mandamus,  §  43. 

Court  will  not  by  mandamus  compel  a  party  to  disobey  an  injunc- 
tion unless  it  was  collusively  obtained  or  is  plainly  void  for  want 
of  jurisdiction,  or  such  action  is  necessary  to  protect  a  party's 
rights,  §  82. 
This  writ  does  not  lie  to  compel  a  court  to  grant  an  injunction, 
§187. 
Contra  in  Louisiana,  Arkansas  and  Michigan,  §§  197, 198,  200. 
This  writ  does  not  lie  to  compel  a  court  to  set  aside  an  injunction, 
§  196. 
Contra  in  Alabama  and  Michigan,  §§  199,  200. 
Court  will  not  be  compelled  by  this  writ  to  try  a  cause  when  an  in- 
junction against  its  prosecution  has  been  granted.  §  204. 
An  injunction  issued  against  the  further  prosecution  of  a  mandamus 
suit  will  be  disregarded,  §  312. 

INSIGNIA : 

May  be  obtained  by  mandamus  by  one  entitled  to  the  office,  §§  154, 

155. 
The  holder  of  the  commission  is  entitled  to  the  insignia  of  office, 

§142. 

INSPECTION : 

Mandamus  lies  to  obtain  inspection  of  public  books  and  papers,  §  155. 

See  Books  (Public). 
Mandamus  lies  to  obtain  inspection  of  books  of  a  private  corporation, 
§161. 

See  Books  (Private  Corporation). 

INTERLOCUTORY  PROCEEDINGS:  See  Courts. 

INTERVENOR : 

Mandamus  refused  to  compel  court  to  allow  party  to  intervene,  §  187. 
See  Third  Parties. 

INTRUDER : 

Mandamus  granted  to  restrain  from  interfering  with  discharge  of 
duties,  §  150. 
Contra,  §  43. 


INDEX. 


437 


IRRIGATION : 

Mandamus  runs  to  party  holding  right  to  appropriate  water  for  irri- 
gation, §  27. 

Writ  issued  to  irrigation  company  to  furnish  water,  §  162. 

Writ  issues  to  county  court  to  fix  rates  for  water  for  irrigation, 
§111. 

ISSUES : 

When  law  dispenses  with  necessity  of  demand  and  refusal  to  per- 
form duty,  the  allegation  thereof  and  denial  thereof  in  return  raise 
no  issue,  §  224. 

J. 

JAIL: 

Sheriff  may  have  a  mandamus  to  obtain  possession,  §  155. 

JUDICIAL  ACTS : 

Definition  of  a  judicial  act,  §§  30,  31,  32,  187. 

Mandamus  not  lie  to  review  decision  on  judicial  acts,  §§  32,  37,  187. 
Courts,  not  the  officers,  decide  whether  the  acts  judicial  or  ministe- 
rial, §§  31,  108. 
Decision,  to  be  a  judicial  act,  must  be  on  the  law  or  facts  legiti- 
mately involved  in  the  question,  §  31. 
If  doubtful,  mandamus  will  not  lie  to  review  action,  §  31. 
Federal  rule  as  to  the  use  of  this  writ,  g  31. 
When  facts  creating  the  discretion  are  admitted,  the  act  ceases  to  be 

judicial,  §§  30,  48. 
Mandamus  has  been  allowed  to  review  judicial  action  — 

when  decision  reached  under  misapprehension  of  law,  §§  38,  39- 
in  England  as  to  acts  of  inferior  courts,  when  the  errors  of  judg- 
ment were  apparent  on  their  records,  §  39. 
when  a  supervisory  control  by  mandamus  was  conferred  over 

such  tribunal,  §  39. 
when  conclusion  reached  was  due  to  matters  of  fact  not  in- 
volved in  the  discretion  allowed,  or  to  mistakes  of  law  not  ger- 
mane thereto,  §g  38,  39. 
when  fraud,  passion,  adverse  interest  or  prejudice  has  influenced 
the  decision,  §§  40,  188. 
The  abuse  of  discretion  must  be  flagrant  to  allow  a  review  by  man- 
damus, §  41. 
Proof  of  abuse  of  discretion  must  be  clear  and  convincing,  §  41. 
Though  an  act  be  judicial,  that  is  no  excuse  for  non-action,  §  34. 
The  party  or  tribunal  will  be  required  to  take  action,  §§  29,  32,  189. 
The  decision  will  be  left  to  such  party  or  tribunal,  g  29. 
Such  party  has  no  right  to  so  act  as  to  defeat  a  mandatory  law, 
§35. 


438  index. 

JUDGE : 

Cannot  issue  this  writ  in  vacation  of  court,  §  213. 

JUDGE  (COUNTY): 

Required  by  this  writ  to  appoint  appraisers  to  assess  damages  for 
right  of  way,  §  103. 

JUDGE  (PROBATE): 

Mandamus  lies  to  compel  issue  of  his  warrant,  §  109. 

JUDGMENT : 

Mandamus  lies  to  render  judgment  if  an  unreasonable  delay  in  do- 
ing so  after  cause  has  been  heard,  §  204. 
Judgment  must  be  rendered  in  reasonable  time  after  cause  submitted, 

§204. 
Writ  lies  to  enter,  when  court  cannot  set  aside  or  grant  new  trial,  §  189. 
on  alternative  verdict  according  to  election  of  plaintiff,  §  189. 
in  a  criminal  case  and  to  pass  sentence,  §  189. 
on  report  of  referee,  §  189. 
Writ  lies  to  sign,  §  189. 

to  correct,  when  erroneously  entered,  §  189. 
to  execute  the  sentence  of  the  court,  §  189. 
Ordinarily  this  writ  not  allowed  to  enforce  a  judgment,  §  130. 
Writ  runs  to  enforce  judgments  against  public  corporations,  since 

no  other  remedy  allowed,  §  130. 
In  such  cases  cannot  allege  that  respondent  was  not  entitled  to  the 

judgment,  §  131. 
In  such  cases,  respondent  cannot  urge  any  defense  available  in  orig- 
inal suit  §  131. 
In  such  cases,  when  court  must  go  behind  judgment  to  find  a  right 
to  issue  the  writ,  it  cannot  decline  to  recognize,  if  so,  that  the 
claim  is  void,  ^131. 
When  money  collected  to  pay  a  judgment,  this  writ  lies  to  compel 

payment,  §  135. 
Writ  not  lie  to  compel  the  granting  of  a  particular  judgment,  §  187. 
to  compel  judgment  of  acquittal  in  a  criminal  case,  §  201. 
to  a  court  to  vacate  an  order  opening  a  judgment,  §  187. 
to  a  court  to  enter  judgment  on  a  verdict  after  a  mistrial  has 
been  entered  and  the  jury  discharged,  §  187. 
Writ  does  not  lie  when  a  final  judgment  has  been  granted,  §  201. 
Writ  has  been  refused,  as  being  final  judgments  — 

to  set  aside  a  dismissal  for  failure  to  pay  costs,  §  201. 

to  amend  a  judgment,  §  201. 

to  vacate  a  judgment  entered  nunc  pro  tunc,  §  201. 

to  set  aside  order  sending  cause  to  another  court.  §  201. 

to  compel  entry  of  a  judgment  for  costs,  §  201. 

to  set  aside  dismissal  of  rule  to  show  cause  why  an  execution 

should  not  issue,  §  201. 
to  compel  grant  of  administration  to  A.  pendente  lite,  §  201. 


INDEX. 


439 


JUDGMENT  (continued) : 

Writ  not  lie  merely  because  writ  of  error  or  appeal  not  allowed, 

§202. 
Judgment  non  obstante  veredicto  may  be  granted  in  mandamus, 

§292. 
When  judgment  is  arrested,  relator  should  apply   for  judgment 

against  himself,  and,  when  refused,  mandamus  lies  to  grant,  §  201. 
Motion  in  arrest  of  judgment  in  mandamus  is  allowable,  §  292. 
Form  of  judgment  for  respondents,  §  292. 
See  Awards  ;  Judicial  Acts  ;  Records  ,  Res  Judicata  ;  Removal 

of  Causes  ;  Taxes  (Levy  of). 

JURAT:  See  Affidavit. 

JURISDICTION : 

Common-law  courts  issue  this  writ,  §  213. 

When  writ  issued  to  an  officer,  original  jurisdiction  is  exercised, 

§214. 
When  writ  issued  to  a  court,  appellate  jurisdiction  is  exercised,  §  214. 
Often  jurisdiction  only   allowed  in  aid  of  appellate  jurisdiction, 

§215. 
Appellate  courts  often  refuse  writs,  when  other  courts  can  issue 

them,  §  215. 
When  judgment  of  justice  appealed,  such  court  can  determine  its 

jurisdiction  over  the  appeal,  and  a  mandamus  to  justice  to  issue 

execution  will  be  refused,  §  212. 
See  Courts;   Courts  (Appellate);  Courts  (Federal  Circuit); 

Court  (United  States  Supreme). 

JURY: 

Statute  of  9  Anne  provided  for  trial  by  jury  of  issues  of  fact,  §  290. 
Rulings  in  America  not  uniform  as  to  right  to  a  jury  trial,  §  290. 
Parties  may  waive  a  jury.  §  290. 
Appellate  courts  generally  send  issues  of  fact  to  lower  court  for  jury 

trial,  §  290. 
WThen  no  issues  of  fact  a  jury  will  not  be  granted,  §  290. 

JUSTICE : 

Courts  try  to  make  this  writ  a  means  of  substantial  justice,  §  66. 

JUSTICES : 

Not  required  in  England  to  issue  distress  warrant  if  threatened  with 

an  action  therefor  and  no  indemnity  offered,  §  81. 
Not  required  in  England  to  sue  officer  on  bond,  when  no  provision 
has  been  made  for  their  costs,  §  81. 
See  Discretion  of  Court  ;  Trespass. 

JUSTICES  OF  THE  PEACE : 

Mandamus  lies  to,  to  perform  ministerial  duties,  §  212. 
Writ  lies  to,  to  take  action  in  judicial  matters,  £  212. 


44:0  INDEX. 

JUSTICES  OF  THE  PEACE  (continued): 

Writ  has  been  issued  to  justice.'  of  the  peace,  §  212. 

to  issue  summons  against  parties,  §  212. 

to  allow  a  change  of  venue,  §  212. 

to  hear  and  determine  informations  brought  before  them,  §  212. 

to  hear  an  appeal,  §  212. 

to  assess  damages  on  dismissal  of  a  replevin,  §  212. 

to  render  judgment  on  verdict  of  jury,  §  212. 

to  proceed  and  hear  preliminary  examination  of  accused,  §  212. 

to  render  a  judgment  of  dismissal,  §  212. 

to  tax  costs  on  dismissing  a  suit,  §  212. 

to  make  correct  entries  in  docket,  §  212. 

to  allow  a  garnishee  to  be  examined,  §  212. 

to  make  a  true  record  of  the  judgment,  §  212. 

to  make  up  the  record  in  due  form,  §  212. 

to  furnish  a  copy  of  judgment,  §  212. 

to  issue  execution  on  judgment,  §212. 

to  issue  writ  of  restitution,  §  212. 

to  sign  a  bill  of  exceptions,  §  212. 

to  grant  an  appeal,  §  212. 

to  approve  a  proper  bond,  §  212. 

to  issue  supersedeas  of  execution,  §  212. 

to  keep  office  in  proper  precinct,  §  212. 
Mandamus  not  lie,  when  justice  allowed  a  discretion,  §  212. 
Writ  not  lie,  when  case  has  been  appealed  from  him,  §  212. 

when  he  has  no  longer  jurisdiction  over  it,  §  212. 

to  levy  penalty  of  a  conviction,  when  no  law  to  sustain  such 
conviction,  §  212. 
Justice  will  not  be  required  by  this  writ  to  perform  any  act  render- 
ing him  liable  to  an  action  therefor,  §  212. 
See  Trespass. 

L. 

LACHES : 

On  account  of  delay  in  applying  for  writ,  the  court  may  refuse  it, 

§87. 
Such  delay  must  first  be  satisfactorily  accounted  for,  §§  87,  314. 
Court  will  consider  all  the  circumstances,  §  87. 
LAWYERS:  See  Attorneys. 

LEGISLATURE : 

Is  entirely  independent  of  the  judiciary,  §  91. 
Mandamus  will  not  run  against,  §  107. 

Writ  not  lie  to  correct  their  minutes,  as  filed  by  their  officers,  §  107. 
Writ  not  lie  to  secretary  of  a  territory  to  alter  the  proceedings  of  its 
legislature  as  filed  with  him,  §  107. 


INDEX.  441 

LEGISLATURE  (continued): 

Writ  refused  to  speaker  of  legislature  to  send  a  bill  to  the  senate 
when  the  house  had  sustained  his  decision  that  the  bill  had  not 

passed,  §  107. 
When  writ  asked  to  enforce  rights  of  member  of  legislature,  the  court 
will  decide  who  was  elected  such,  provided  no  contest  pending  in 
legislature,  §  107. 
This  writ  was  issued  — 

to  speaker  of  legislature  to  certify  to  a  member  s  account,  £  107. 
to  speaker  of  legislature  to  certify  to  the  election  or  appointment 

of  officers  by  the  legislature,  §  107. 
to  speaker  of  legislature  to  open  and  publish  the  returns  of  the 

election  of  state  officers,  §  107. 
to  secretary  of  state  to  file  election  returns  with  the  speaker  of 
the  legislature,  and  the  court  decided  which  body  was  the  true 
legislature,  §  107. 
The  courts  cannot  control  by  mandamus  public  funds  in  the  hands 
of  officers    against  the  political  power  in  administering  public 
finances,  §  89. 
Can  decide  when  property  is  devoted  to  a  public  use,  §  26. 

LICENSES: 

When  officer  has  no  discretion,  compelled  by  mandamus  to  issue  li- 
cense, g  119. 
When  discretion  allowed,  officers  decision  will  not  be  reviewed  by 

this  writ,  §§  81,  119,  313.  . 

Discretion  allowed,  when  sufficiency  of  bond  must  be  determined, 

§119. 
when  applicant  must  be  properly  recommended,  §  119. 
when  diploma  required  from  institution  in  good  standing,  §  119. 

Writ  will  not  issue  — 

when  the  right  to  a  license  has  since  been  taken  away,  §  77. 

when  such  business  has  since  been  made  illegal,  §§  60,  119. 
Writ  has  been  issued  because  of  refusal  of  license  from  mistake  of 

law,  §39.  . 

If  the  taxes  on  licenses  has  been  increased  prior  to  the  granting  ol 

the  license,  the  relator  must  pay  it,  before  the  writ  will  issue,  §  119. 
The  petition  must  allege  facts  showing  compliance  with  the  law,  §  256. 
Discretion  granted  will  be  reviewed,  when  decision  influenced  by 

fraud,  passion,  adverse  interest  or  prejudice,  §  40. 

LIMITATIONS  (STATUTE  OF): 

Generally  does  not  apply  to  these  writs,  §  314. 

Courts  by  analogy  adopt  it  relative  to  mandamus,  §  314. 

Writ  will  be  refused  if  statutory  period  has  passed,  when  court  acts, 

though  application  made  in  time,  §  314. 
Not  apply,  when  government  officially  asks  for  writ,  §  314. 


442  INDEX. 

LOUISIANA : 

To  prevent  irreparable  injury,  writ  lies  to  review  interlocutory 
orders  of  the  courts,  §  198. 

H. 

MANDAMUS: 
Definition,  §  1. 
Origin,  §  2. 

Common-law  writ,  §§  2,  3,  213. 

Prerogative  in  England  :  a  writ  of  right  in  America,  §  62. 
Extension  of  uses  of  in  England.  §  8. 
Uncertainty  as  to  limits  of  use,  §  9. 
Only  used  in  extraordinary  cases,  §  12. 
Laws  extending  operation  to  be  strictly  construed,  §  12. 
Agreement  of  parties  not  extend  its  use,  §§  13,  17. 
How  far  confined  to  public  rights,  §  21. 
Lies  though  multiplicity  of  acts  required,  §  31. 
Not  he  to  regulate  whole  course  of  conduct,  §  31. 
Lies  to  courts  to  take  jurisdiction,  when  wrongfully  declined,  §  30. 
Not  lie  to  undo  what  has  been  done,  §  42. 
Not  lie  when  any  thiDg  remains  to  be  done  or  fact  to  be  ascertained,  §  42. 

to  abstain  from  a  tort  or  abuse  of  office,  §  43. 

to  prevent  others  from  interfering  with  officer,  §  48. 

to  prevent  one  claiming  to  be  elected  from  qualifying  or  from 
acting,  §  43. 
Only  protects  substantial  interests,  §  49. 
Denied  when  there  are  other  remedies,  §§  10,  209. 
May  issue,  though  but  one  step,  and  may  require  other  proceedings, 

§55. 
Is  entirely  a  civil  remedy,  §  61. 
Lies  only  to  protect  property  or  prevent  infringement  of  personal 

rights,  §  60. 
Lies  to  pass  on  real  contests,  enforce  or  protect  specific  rights  and 

redress  actual  wrongs,  §  66. 
Cannot  take  the  place  of  appeal  or  writ  of  error,  §§  201,  313. 
Can  include  only  one  case,  §  232. 
Bars  a  suit  for  damages,  §  311. 
See  Motion  for  Mandamus;  Money;  Remedies. 

MANDATORY  ACTS:  See  Statutes, 

MAYOR : 

Writ  issued  to,  to  sign  order  to  pay  a  claim  against  the  city,  §  109. 

to  sign  a  contract  for  the  city,  §  109. 

to  countersign  the  comptroller's  warrant,  §  109. 

to  issue  and  sell  city  bonds,  §  109. 
Writ  not  lie  to,  to  lease  lands  when  allowed  a  discretion,  §  110. 
Will  not  be  required  to  act  after  abolition  of  municipality,  §  241. 


INDEX. 


443 


MICHIGAN : 

Interlocutory  orders  of  courts  may  be  reviewed  by  mandamus,  §  200. 

MINISTERIAL  ACTS: 

Definition  of,  §§  30,  81,  186. 

Mandamus  lies  to  compel  performance  of,  §  29. 

Courts  will  decide  whether  duties  are  ministerial,  §  108. 

Writ  lies  relative  to  such  acts  to  all  public  officers  and  public  corpo- 
rations, §  108. 

Courts  will  ascertain  the  specific  duty  and  will  specify  the  exact 
mode  of  performance,  §§  29,  31,  186. 

See  Preliminary  Questions. 

MONEY : 

Writ  refused  to  compel  deposit  of  public  money  according  to  con- 
tract, §  16. 
Writ  refused  to  recover  money  misapplied  by  a  public  officer,  §  17. 
Will  writ  be  refused,  unless  monetary  interests  are  involved,  §g  49, 

167. 
Weight  of  authority  is  that  monetary  interests   not  necessary,  §  49. 
Writ  issued  to  county  officers  to  set  apart  certain  funds  for  specific 

purposes,  §  111. 
See  Corporators  (Private  Corporations). 

MONOPOLY : 

When  a  monopoly  is  granted,  mandamus  lies  to  enforce  duties  im- 
posed, §  27. 
MOTION  IN  ARREST  OF  JUDGMENT :  See  Judgment. 

MOTION  FOR  A  MANDAMUS: 

First  proceeding  is  a  motion  for  a  mandamus,  §  245. 

Some  courts  require  leave  to  be  obtained  to  be  allowed  to  make  the 
motion,  §  245. 

Usual  practice  is  to  file  a  petition  containing  all  the  averments  nec- 
essary in  order  to  have  the  writ  granted,  §  245. 

Such  motion  must  be  supported  by  affidavit,  §p  245,  246. 

Affidavit  and  petition  need  not  be  separate  papers,  §  246. 

A  written  motion  beside  the  petition  not  usual,  g§  245,  249. 

Motion  is  usually  heard  ex  pavte,  §  249. 

Upon  hearing  the  motion  court  may  grant  a  motion  to  show  causo 
why  a  mandamus  should  not  issue,  an  alternative  writ,  a  peremp- 
tory writ,  or  may  dismiss  the  proceedings,  §  249. 

If  upon  the  hearing  a  prima  facie  case  is  presented,  or  the  right  to 
the  writ  is  doubtful,  court  usually  grants  a  motion  to  show  cause 
or  an  alternative  writ,  that  the  matter  may  be  more  fully  investi- 
gated upon  the  appearance  of  the  respondent,  §  250. 

See  Affidavit;  Alternative  Writ;  Order  to  Show  Cause; 
Peremptory  Writ;  Petition;  Title. 


4  ±4  INDEX. 

MOTION  FOR  PEREMPTORY  WRIT:   See  Peremptory  Writ  (Mo- 
tion for). 

MOTION  TO  QUASH: 

Lies  to  the  alternative  writ,  §  267. 
Is  equivalent  to  a  demurrer,  §  209. 
It  lies  to  the  alternative  writ,  if  — 
it  is  informal  or  defective,  §  269. 
if  its  mandatory  part  is  larger  than  warranted  by  its  recitals  or 

by  the  law,  §  260. 
if  it  varies  in  substance  from  the  order  of  the  court,  §  262. 
It  admits  as  true  only  allegations  well  pleaded,  §  269. 
Does  not  admit  matters  of  law,  legal  conclusions,  or  statutory  con- 
struction, §  269. 
May  be  used  to  meet  mere  formal  defects,  §  269. 
Defects  of  substance  may  be  urged  at  any  time,  §  269. 
If  overruled,  under  early  practice  a  peremptory  writ  issued,  $  268. 
If  overruled,  under  present  practice  a  return  may  be  filed,  §  272. 
If  sustained,  under  earl}'  practice  the  proceedings  were  dismissed,  §  268. 
If  sustained,  under  present  practice  the  relator  may  amend,  §§  271, 

294. 
This  motion  also  lies  to  the  return,  if  defective,  §§  268,  285. 
When  return  is  evasive  or  manifestly  bad,  this  motion  is  used,  §§  268, 

284. 
If  return  sets  up  any  good  defense,  it  should  not  be  quashed  as  a 

whole,  §  284. 
If  motion  overruled,  under  early  practice  respondent  had  judgment, 

§268. 
If  motion  overruled,  under  present  practice  relator  may  reply,  if 

necessary,  §  288. 
If  motion  sustained,  under  early  practice  a  peremptory  writ  issued, 

§  268. 
If  motion  sustained,  under  present  practice  respondent  may  amend, 

§§  287,  294. 
See  Amendments;  Demurrer;  Peremptory  Writ. 

K 
NEW  TRIAL: 

Generally,  writ  refused  to  a  court  to  grant  a  new  trial,  §  187. 
Rule  different  in  Michigan,  §  200. 

NONSUIT : 

Mandamus  not  lie  to  vacate  an  order  setting  aside  a  nonsuit,  §  196. 

Writ  issued  to  set  aside  the  dismissal  of  an  appeal  from  a  nonsuit, 
§201. 

Writ  issued  in  Michigan  to  compel  vacation  of  a  nonsuit,  §  200. 

If  a  mandamus  proceeding  is  not  prosecuted,  a  nonsuit  may  be  or- 
dered, §  292. 


INDEX.  4  1  5 

O. 

OATH: 

Mandamus  lies  to  swear  an  officer  elect  into  office,  §  141. 

but  not  if  there  is  a  judgment  of  ouster  against  him,  §  141. 
Swearing  a  party  into  office  confers  no  right  to  the  office,  g  143. 
Writ  issued  to  administer  an  oath  of  insolvency  to  a  debtor,  §  189. 
See  Affidavit. 

OFFICERS  : 

Mandamus  lies  to  any  officer  to  perform  any  ministerial  duty,  §§  21, 

108. 
Writ  not  lie  against  an  officer  for  acts  done  in  an  unofficial  char- 
acter, nor  in  matters  where  he  acts  as  an  individual,  §§  23,  211. 
Writ  not  lie  to  compel  him  to  pay  out  money,  unless  he  holds  it 

officially,  §  23. 
Cannot  refuse  to  pay  out  public  money  if  the  government  is  willing, 

§90. 
Writ  not  lie  to  direct  his  general  course  of  conduct,  §  69. 
Will  be  compelled  by  this  writ  to  obey  the  decision  of  his  superior 

officer  on  appeal  from  him,  §§  31,  101,  109. 
Writ  issues  to  an  officer  — 

to  take  jurisdiction  of  a  matter  when  he  wrongfully  declines, 

§36. 
to  issue  bonds  of  a  municipality  when  such  is  his  duty,  §  109. 
to  keep  his  books  in  the  mode  designated  by  law,  §  109. 
to  swear  a  party  elected  into  office,  §  141. 
Generally  the  writ  is  refused  if  another  tribunal  can  compel  the  per- 
formance of  the  duty  desired,  §§  84,  85. 
The  wi  it  will  not  be  granted  to  restore  an  officer  to  his  office  — 

if  he  can  be  immediately  suspended  or  removed  regularly,  §  74. 
if  his  office  is  held  at  the  pleasure  of  others,  ^  74. 
when  he  may  be  removed  by  a  majority  vote,  §  74. 
when  his  position  is  a  mere  service,  §  74. 
The  writ  will  be  refused  unless  there  is  an  officer  to  do  the  act,  §  59. 
The  writ  will  not  lie  against  him  if  his  term  of  office  has  expired. 
§241. 
if  his  office  has  been  abolished,  §  241. 
When  an  officer  is  the  relator  his  successor  can  continue  the  pro- 
ceedings, §  233. 
When  he  is  the  respondent  courts  differ  as  to  whether  the  writ 

abates,  §  238. 
The  United  States  can  impose  no  duty  on  a  state  officer  and  compel 

him  to  perform  it,  §  219. 
The  alternative  writ  to  restore  an  officer  to  office  must  show  that  he 
has  the  legal  and  constitutional  right  to  exercise  its  duties,  §  256. 


446  INDEX. 

OFFICERS  (continued): 

An  officer  will  cot  be  required  to  commit  a  trespass  or  to  subject 

himself  to  the  liability  of  an  action,  §  116. 
See  Removal  from  Office;  Time;  Trespass. 

OFFICERS  (PRIVATE  CORPORATIONS) : 

Mandamus  lies  to  them  to  discharge  their  duties,  §  165. 
Writ  issued  to  them  — 

to  put  the  corporate  seal  to  papers,  §  165. 
to  pay  interest  on  stock,  as  law  required,  §  165. 
to  deliver  the  corporate  books  to  their  successors,  §  165. 
to  call  an  election  of  their  successors,  §  165. 
An  unreasonable  postponement  of  an  election  is  equivalent  to  a  re- 
fusal to  call  it,  §  165. 
Corporation  can  remove  them  for  adequate  cause,  §  173. 
Mandamus  to  restore  a  removed  officer  will  not  be  granted  — 
unless  tenure  of  office  is  permanent,  §  173. 
or  when  a  majority  vote  may  remove,  §  173. 
or  when  good  cause  for  removal,  though  done  irregularly,  §  173. 
"When  removal  is  discretionary,  officer  is  not  entitled  to  a  hearing, 

§173. 
Writ  will  not  lie  to  fill  an  office  therein,  while  there  is  a  de  facto  in- 
cumbent, §  173. 
Writ  will  run  to  them  to  pay  the  taxes  levied  on  corporate  stock, 
when  there  is  no  other  remedy  to  collect  them,  §  19. 

OFFICES : 

Most  courts  refuse  to  try  title  to  an  office  by  mandamus,  §£  104,  142. 
Writ  not  granted  to  put  into  office,  when  there  is  a  de  facto  incum- 
bent, §  143. 
Writ  lies  for  office,  if  incumbent  holding  only  till  election  of  suc- 
cessor, §  143. 
if  party  holding  by  an  election  or  appointment,  merely  color- 
able, §  143. 
if  it  is  empty,  §  143. 
Party,  asking  a  writ  of  mandamus  to  obtain  an  office,  should  do 

everything  necessary  to  complete  his  title  thereto,  §  143. 
A  mandamus  putting  a  party  into  an  office  confers  no  right  thereto, 

§143. 
Writ  not  lie  to  count  the  votes  cast  for  an  office,  if  it  is  legally  filled, 
§184. 
for  an  office,  if  the  election  was  held  without  authority  of  law, 
§184. 
A  party  elected  to  an  office  will  be  compelled  to  assume  its  duties, 

§145. 
See  Officers  ;  Removal  from  Office  ;  Title. 


INDEX.  447 

OFFICES  (REMOVAL  OF): 

Writ  lies  to  compel  officers  to  remove  their  offices  to  the  places  ap- 
pointed therefor  by  law,  g  125. 
Unless  the  law  has  provided  another  remedy,  §  55. 
Writ  refused  in  one  instance  for  laches,  §  87. 

ORDER  TO   SHOW  CAUSE  WHY  ATTACHMENT  SHOULD   NOT 
ISSUE  FOR  DISOBEYING  A  PEREMPTORY  WRIT: 
Relator   may  show  in  defense  any  sufficient  cause  for  his  diso- 
bedience, §  300. 
Such  defenses  have  been  considered  sufficient  — 

when  county  officers  returned  that  they  had  not  levied  a  tax, 
because  all  the  money  they  could  levy  was  required  for  the 
necessities  of  the  county,  §  300. 
when  a  change  of  law  presented  new  issues.  §  300. 
when  by  agreement  of  parties  the  operation  of  the  writ  was 

arrested,  §  300. 
when  the  relator  was  no  longer  entitled  to  the  writ,  §  300. 
when  the  writ  was  vicious  by  reason  of  its  defects,  §  301. 
when  the  affidavit  for  attachment  was  defective,  g  301. 
when  it  appeared  there  was  no  disobedience,  g  301. 

ORDER  TO  SHOW  CAUSE  WHY  A  MANDAMUS  SHOULD  NOT 
ISSUE : 

By  English  practice  usually  granted  first,  §  250. 

Court  fixes  time  for  respondent  to  make  return  to  it,  §  251. 

Hearing  under  it  is  on  the  original  affidavits  and  counter-affidavits. 
§  252. 

If  an  issue  of  fact  presented,  an  alternative  writ  should  issue,  that 
there  may  be  a  jury  trial,  g  252. 

If  an  issue  of  law  presented  and  respondent  fully  heard,  a  peremp- 
tory writ  may  issue  at  once,  g  252. 

If  no  merit  in  case,  proceedings  are  dismissed,  g  252. 

Court  will  mould  it,  g  293. 

ORDER    TO     SHOW   CAUSE    WHY    THE    PEREMPTORY   WRIT 
SHOULD  NOT  BE  QUASHED: 
Court  may  grant,  g  297. 
Court  may  quash  the  peremptory  writ,  g  297. 

if  convinced  the  respondents  are  unable  to  obey  it,  §  297. 
if  it  is  in  excess  of  the  alternative  writ,  g  297. 
if  it  is  in  excess  of  the  rule  made  absolute  on  cause  shown, 
g297. 
.     if  convinced  it  ought  not  to  have  been  issued,  g  297. 

if  it  has  since  become  impossible  or  improper  to  obey,  g  297. 
if  it  was  improperly  obtained,  g  297. 


448  INDEX. 

ORDER   TO   SHOW    CAUSE   WHY   RETURN   TO   PEREMPTORY 
WRIT  SHOULD  NOT  BE  QUASHED : 
Court  may  grant  such  a  rule  and  pass  on  the  question,  §  299. 

ORDINANCE : 

Clerk  of  a  village  not  required  to  post  up  an  ordinance,  when  it  was 
repealed  before  the  application  for  the  mandamus,  §  75. 

P. 

PARTIES: 

The  general  rule  is  that  the  government  must  be  plaintiff,  §  264. 

The  name  of  party  instituting  proceedings  is  added  as  relator,  §  264. 

The  party  against  whom  the  writ  is  sought  is  defendant  or  respond- 
ent, §  264. 

See  Government;  Private  Parties;  Relator;  Respondent; 
Third  Parties;  Title. 

PARTNERSHIP: 

Rule  that  partner  cannot  sue  his  copartner  does  not  apply  to  man- 
damus proceedings,  §  231. 
Death  of  a  partner  who  is  a  relator  with  his  copartners  does  not 
abate  the  proceedings,  §  233. 

PATENTS : 

Writ  not  lie  to  issue  to  certain  persons  for  land,  when  officer  allowed 

a  discretion,  g  110. 
Writ  lies  to  secretary  of  state  to  issue  for  lands,  when  it  is  fully  pre- 
pared and  recorded,  g  234. 

PATENTS  (COMMISSIONER  OF): 

Writ  lies  to  prepare  and  present  a  patent  to  the  secretary  of  the  in- 
terior for  his  signature,  g  101. 

Writ  lies  to  furnish  a  copy  of  a  rejected  or  abandoned  application 
for  a  yatent,  §  101. 

Writ  refused  to  compel  to  re-issue  a  patent  to  an  assignee  who,  as 
decided  by  him,  was  not  such  an  assignee  as  the  law  specified, 
glOO. 

PAYMENT : 

Writ  lies  to  pay  relator  money  declared  to  be  due  to  relator  out  of 
funds  in  respondent's  hands,  g  135. 

When  statute  provides  for  payment  out  of  a  certain  fund,  this  writ 
lies  to  compel,  g  135. 

Officer  must  pay  to  judgment  creditor  money  collected  to  pay  his 
judgment,  g  135. 

Officer  can  only  be  required  out  of  funds  of  such  kind  as  he  pos- 
sesses, g  135. 

When  a  claim  is  properly  audited  and  a  writ  is  sought  to  compel  its 
payment,  court  can  examine  as  to  legality,  but  not  as  to  amount, 
§135. 


INDEX. 


449 


PAYMENT  (continued) : 

Writ  to  pay  money  due  under  a  contract  must  specify  the  exact 

amount.  £  256. 
Writ  not  lie  to  state  officers  to  pay  in  absence  of  an  appropriation, 
§89. 
when  state  has  otherwise  appropriated  the  money,  §  89. 
State  officers  cannot  refuse  to  pay  out  public  money,  if  the  state  is 

willing,  §  90. 
Writ  may  be  refused  for  laches,  §  87. 
Writ  will  be  refused  to  pay  out  of  a  certain  fund,  when  a  court  has 

decided  that  such  fund  was  illegally  collected,  §  135. 
See  Disbursing  Officers  ;  Treasurers. 

PENSIONS  (COMMISSIONER  OF): 

Writ  not  lie  to,  to  reverse  his  decision  on  an  increase  of  pension. 
§  100. 

Will  be  required  to  obey  decision  of  secretary  of  the  interior  on  ap- 
peal^ 101. 

PEREMPTORY  WRIT: 

Only  issued  without  notice  in  cases  of  extreme  necessity,  §  251. 

If  improperly  granted  without  notice,  may  be  reversed  on  appeal, 

§  261. 
May  issue,  if  no  return  to  alternative  writ,  §  266. 
Courts  are  reluctant  to  issue  on  a  default,  §  266. 
Issued  when  return    merely  an  argument  against  court's  power, 

§  266. 
May  issue,  if  return  evasive  or  frivolous,  §  284. 
Must  strictly  conform  to  mandatory  clause  of  alternative  writ,  §§  230, 

296. 
Some  courts  have  only  required  a  substantial  compliance  with  the 

alternative  writ,  §  296. 
A  variance  in  details  from  alternative  writ  has  been  allowed,  §  296. 
Cannot  be  amended.  §  294. 

If  alternative  writ  is  amended,  it  may  be  issued  in  conformity,  §  294. 
Relator  must  prove  his  right  to  everything  he  asks,  §§  291,  296. 
Relator  must  not  make  a  broader  demand  than    he  is  entitled  to 
§  291. 
All  courts  do  not  now  adhere  to  this  rule,  §  291. 
The  claim  must  be  established  against  all  the  respondents,  §  291. 
All  issues  must  first  be  disposed  of,  §  295. 

Should  describe  the  act  to  be  done  with  reasonable  certainty,  §  297. 
Nature  of  the  mandatory  order,  §  321. 
If  writ  does  not  effect  the  purpose,  an  alias  or  pluries  may  issue, 

§§  292,  297. 
Cause  may  be  continued  till  the  writ  can  be  fully  obeyed,  §  296. 
Court  may  during  continuance  issue  other  orders,  §  296. 
29 


450  INDEX. 

PEREMPTORY  WRIT  (continued): 

Must  be  fairly  and  honestly  complied  with,  §  299. 

Strictly  no  return  to  but  obedience,  §  297. 

See  Attachment  ;  Order  to  Show  Cause  Why  an  Attachment 
Should  Not  Issue  ;  Order  to  Show  Cause  Why  the  Peremp- 
tory Writ  Should  Not  be  Quashed;  Order  to  Show  Cause 
Why  Return  to  Peremptory  Writ  Should  Not  be  Quashed. 

PEREMPTORY  WRIT  (MOTION  FOR  ON  THE  RETURN): 

Merely  a  substitute  for  a  general  demurrer,  §  285. 

Subject  to  the  same  rules  as  a  demurrer,  §  286. 

The  allegations  of  the  return  must  be  taken  as  true,  §  285. 

Objections  only  reached  by  special  demurrer  will  be  disregarded, 
§285. 

Will  not  be  granted,  if  any  material  averment  is  denied  by  the  re- 
turn, §  285. 

Overruling  it  is  only  a  refusal  to  issue  writ  prior  to  trial,  §  285. 

PETITION  FOR  WRIT: 

Must  contain  all  the  averments  necessary  for  the  alternative  writ, 

§§  245,  262. 
Must  be  supported  by  affidavit,  §  246. 
Need  not  be  a  separate  paper  from  the  affidavit,  §  246. 
Should  be  addressed  to  the  court,  §  249. 
Upon  its  showing  the  alternative  writ  is  granted,  §  262. 
Court  will  mould  the  alternative  writ  so  far  as  relief  is  concerned, 

§  262. 
Cannot  be  used  to  sustain  or  supplement  allegations  of  alternative 

writ,  253. 
May  be  used  as  an  alternative  writ,  in  which  case  subject  to  the  rules 

of  pleading  applicable  thereto,  §  262. 
Form  of,  §  317. 
Title  of,  8  316. 
Verification  of,  §  318. 
Illustration  of,  §  322. 
See  Alternative  Writ  ;  Motion  for  a  Mandamus. 

PHYSICIANS:  See  Licenses. 

PLEADINGS : 

Only  one  case  can  be  included  therein,  §  232. 

Rules  relative  to  pleadings  in  civil  suits  apply,  §§  289.  292. 

In  pleading  an  official  bond,  averments  must  be  made  showing  its 

compliance  with  law,  §  256. 
Writ  refused  to  court  to  prevent  the  filing  of  a  pleading,  §  196. 
to  allow  double  pleading,  §  187. 

to  reverse  its  action  in  extending  time  for  pleading,  §  187. 
See  Alternative  Writ;  Petition;  Practice;  Return;  Title. 


INDEX.  451 

POLICE  BOARD: 

Will  not  be  controlled  as  to  general  course  of  conduct,  §§  69,  120. 
Writ  issues  to  revoke  order  contrary  to  law,  §  120. 
to  restore  policemen  wrongfully  discharged,  §  120. 
to  pay  policemen  the  salary  allowed  by  law,  §  120. 
though  contract  calls  for  less,  §  120. 
Writ  will  not  be  granted  to  compel  the  superintendent  of  police  to 
do  his  duty,  when  the  board  can  discharge  him,  §  84 

POLITICAL  RIGHTS: 

Are  not  protected  by  this  writ,  §  61. 

POSTMASTER-GENERAL : 

Writ  issues  to,  to  credit  a  contractor  with  allowances  which  have 
been  legally  determined,  §  101. 

PRACTICE : 

The  general  rules  of  practice  apply  to  mandamus  proceedings,  §  292. 

A  nonsuit  may  be  granted,  §  292. 

A  withdrawal  of  the  return  may  be  allowed,  §  292. 

A  new  trial  may  be  granted,  §  292. 

A  motion  in  arrest  of  judgment  lies,  §  292. 

A  judgment  non  obstante  veredicto  may  be  granted,  §  292. 

An  alias  or  plur'ies  peremptory  writ  may  be  issued,  §  292. 

All  issues  must  be  disposed  of  before  the  peremptory  writ  will  issue. 

§296. 
Cause  may  be  continued  till  peremptory  writ  can  be  fully  obeyed, 

§296. 
Court  during  such  continuance  may  make  such  orders  as  it  deems 

proper,  §  296. 

PRELIMINARY  QUESTIONS : 

Are  they  judicial  or  ministerial,  §  44. 
English  rule,  §  45. 
American  decisions,  g§  46,  47. 
Summary  of  the  decisions.  §  48. 

When  court  erroneously  decides  on  some  pi-eliminary  question  of 
practice  not  to  hear  a  cause,  this  writ  lies  to  compel  to  hear,  §  207. 

PRESIDENT  (UNITED  STATES): 

This  writ  not  run  against,  as  to  his  duties  derived  from  the  consti- 
tution of  the  United  States.  §  92. 

PRIMA  FACIE  TITLE: 

Party  who  has  received  the  commission  or  certificate  of  election  and 

has  qualified  has  the  prima  facie  title  to  the  office,  §  154. 
Courts  disregard  groundless  assumption  of  election  and  pretended 

exercise  of  an  office,  §  154. 
Party  with  prima  facie  title  must  show  he  is  the  officer  de  jure, 

§154. 


452  INDEX. 

PRIMA  FACIE  TITLE  (continued): 

Such  party  may  enforce  his  collateral  rights  though  there  is  an  in- 
cumbent of  the  office,  §  152. 
Such  party  may  have  this  writ  to  obtain  a  certificate  of  election, 
§152. 
to  have  his  bond  approved,  §  152. 
to  obtain  a  warrant  for  his  salary,  §  152. 
to  obtain  possession  of  official  books,  §§  152,  154. 
to  obtain  the  office-room,  §§  152,  154. 
Ordinarily,  in  such  cases,  question  of  eligibility  to  the  office  is  not 

allowed  to  be  raised,  §  153. 
Writ  is  refused  if  another  has  the  prima  facie  title,  §  153. 
Writ  is  refused  by  most  courts  when  the  title  to  office  is  involved, 

§  153. 
See  Offices  ;  Title. 

PRIVATE  PARTIES: 

Mandamus  will  not  run  against,  §  23. 

Writ  runs  against  if  he  holds  official  or  g?{«s/-official  position,  §  24. 
to  obtain  public  books  which  he  retains  after  expiration  of  term, 

§23. 
if  he  assumes  functions  from  which  public  duties  arise,  §  24 
as  to  his  property  devoted  to  public  uses,  §§  25,  26. 
if  he  holds  public  franchises,  §  27. 
Writ  will  not  lie  against  one  who  acted  as  judge  by  consent  of  par- 
ties, §  193. 
The  writ  was  refused  against  the  speaker  of  an  illegal  house  of  rep- 
resentatives, §  23. 
PUBLIC  CORPORATIONS :  See  Corporations  (Public). 

PUBLIC  DOCUMENTS :  See  Books  (Public). 

PUBLIC  FUNCTIONS: 

Writ  lies  to  those  assuming  public  functions  by  the  nature  of  their 

business,  §  13. 
Writ  lies  to  one  assuming  public  functions  to  discharge  the  duties 

thereof,  §  24 
See  Function. 

PUBLIC  FUNDS: 

Officer  entitled  to  custody  of  public  funds  may  have  a  mandamus  to 

obtain  them,  §  134. 
Writ  lies  therefor  though  the  respondent  has  already  paid  them  over 

to  the  wrong  officer,  §  134. 
Writ  to  pay  claims  will  be  refused  against  municipalities  when  all 

their  funds  are  required  for  necessary  expenses,  §§  63,  66. 
See  Payments;  Treasurers;  Disbursing  Officers. 


INDEX. 


453 


PUBLIC  RIGHTS: 

When  involved,  make  a  statute  mandatory  when  in  form  permissive. 

§34 
When  involved,  writ  always  granted  on  public  application,  §  88. 

PUBLIC  USE: 

Mandamus  lies  to  control  property  devoted  to,  §§  15,  25,  27. 

Legislature  decides  what  is  a  public  use,  gg  15,  26. 

Writ  not  lie  if  property  is  withdrawn  from  such  use,  §§  15,  25. 

PUIS  DARREIN  CONTINUANCE  (PLEA) : 

Allowed  as  to  matters  occurring  after  joinder  of  issue,  §  279. 


Q. 

QUANTUM  MERUIT: 

Writ  cannot  be  used  to  recover  money  under  a  contract  as  on  a 
quantum  meruit,  §  255. 

QUO  WARRANTO: 

Is  necessary  before  a  mandamus,  if  there  is  a  de  facto  incumbent  of 

the  office,  §  143. 
When  allowable  to  oust  the  incumbent  from  the  office,  generally 

held  that  a  mandamus  will  not  issue,  g§  138,  184. 
A  mandamus  to  issue  a  certificate  of  election  has  sometimes  been 

refused,  when  a  quo  u-arranto  was  necessary  to  obtam  the  office, 

§140. 
See  De  Facto  Incumbent. 


E. 

RAILROADS : 

Writ  lies  to  as  being  gua.s?-public,  §  27a. 

to  compel  obedience  to  obligations  imposed  by  law,  §  13. 

when  it  accepts  a  law  passed  for  its  benefit,  §  13. 
Writ  not  lie  to  enforce  its  contract,  though  required  by  law  to  make 

contract,  §  16. 
Writ  issued  to  it  — 

to  treat  all  alike  in  all  respects,  §  27a. 

to  complete  its  line,  §  159. 

to  restore  part  of  its  line  which  was  taken  up,  §  159. 

to  construct  a  bridge  over  its  track,  §  159. 

to  construct  a  bridge  over  a  river,  §  159. 

to  put  a  cattle-guard  on  its  track,  g  159. 

to  restore  a  highway  obstructed  by  it,  g  159. 

to  make  crossings  on  streets  over  its  tracks,  §  159. 


454  INDEX. 

RAILROADS  (continued) : 

Writ  issued  to  it  (continued)  — 

to  build  so  as  not  to  obstruct  a  stream,  §  159. 
to  build  a  depot  in  a  certain  place,  §  159. 
to  resume  use  of  an  abandoned  station,  §  159. 
to  receive  a  tax  receipt  in  payment  of  fare,  §  159. 
to  stop  its  trains  at  a  certain  place,  §  159. 
to  issue  commutation  tickets,  §  159. 
to  carry  freight  for  all  on  same  terms,  §  159. 
The  last  is  not  the  English  rule,  §  159. 
Nor  when  the  law  provides  another  remedy,  §  55. 
Writ  will  be  refused  to  require  to  summon  jury  to  assess  damage  to 
land  when  road  not  yet  finished  and  full  effects  not  yet  felt,  §  73. 
Writ  refused  to  compel  to  do  certain  acts,  when  it  has  exhausted  its 

power  to  raise  money,  §  76. 
Still  writ  may  be  issued,  if  it  voluntarily  put  itself  in  that  position, 

g76. 
Inability  to  do  the  act  is  a  good  answer  in  proceedings  for  contempt, 

§76. 
When  it  is  financially  unable  to  fulfill  its  duties  a  quo  warranto,  and 

not  a  mandamus,  has  been  suggested  as  the  remedy,  §  164. 
Writ  not  lie  to  the  receiver  of  a  railroad,  since  the  court  can  order 

him,  §  84. 
See  Bonds  (Municipal)  ;  Corporations  (Private)  ;  Subscriptions. 

REAL  ESTATE: 

Mandamus  not  a  proper  proceeding  to  determine  the  title  to  real 

estate,  §  64. 
If  title  to  real  estate  incidentally  involved,  court  should  be  satisfied 
about  it,  §  64. 

RECEIVER:  See  Railroads. 

RECORDS : 

Writ  issued  to  court  to  correct  its  records  according  to  the  facts, 
§189. 
to  enter  on  its  records  its  refusal  to  probate  a  will,  §  189. 

REFEREE: 

Writ  not  lie  to  judge  to  sign  his  report,  on  stipulation  of  parties,  that 
it  should  be  the  judgment  of  the  court  and  the  judge  should  sign 
it,  §  210. 

REFUSAL: 

Refusal  to  do  the  duty  must  precede  application  for  a  mandamus, 

§  223. 
Must  be  a  clear  refusal  before  the  writ  will  issue,  §  223. 


INDEX.  455 

REFUSAL  (continued): 

In  public  duty  a  neglect  of  performance  is  a  refusal,  §  225. 
Acts  considered  in  such  cases  equivalent  to  a  refusal  — 

A   failure  to  perform  on  the  proper  day  with  no  excuse, 

§225. 
Adjournment  of  board  without  acting  on  claim  presented. 

§225. 
Adjournment  of  board  from  time  to  time  without  action, 
8  995 

Long  postponement  of  performance  of  the  duty,  §  225. 

Failure  to  levy  a  tax,  though  requested,  §  225. 

Failure  for  years  to  levy  taxes  to  pay  judgments,  §  225. 
In  such  cases  must  distinctly  appear  respondent  declines  to  do  the 

act,  §  225. 
See  Default;  Issues. 

REGISTER  OF  DEEDS: 

Writ  issued  to  enter  satisfaction  of  a  mortgage,  §  124. 

to  allow  his  records  to  be  copied  by  authorized  officers,  §  124. 

to  record  a  deed,  §  124. 
Not  required  to  record  a  deed  not  received  officially,  §§  23,  124. 

REGISTER  OF  VOTERS : 

Writ  lies  to  register  a  party  entitled  thereto,  §  178. 

to  restore  to  list  one  improperly  stricken  off,  §  178. 

RELATOR : 

In  mandamus  to  enforce  private  rights  the  party  interested  must  be 
relator,  §  228. 

In  private  rights,  the  relator  must  show  some  personal  or  special  in- 
terest, §  228. 

Holder  of  a  warrant,  not  its  drawer,  must  be  relator  to  compel  pay- 
ment, §  228. 

A  father  is  allowed  by  mandamus  to  assert  his  children's  rights  in 
the  public  schools,  §  228. 

When  duty  due  to  government  as  such,  private  party  cannot  be  re- 
lator, §  230. 

As  to  public  duties  generally,  question  whether  a  private  party  can 
be  relator,  §  229. 

The  writ  has  been  denied  to  a  private  relator  — 

to  order  an  election  for  removal  of  county  seat,  §  229. 
to  compel  removal  of  fences  from  public  road,  §  229. 
to  award  a  contract  to  him  as  the  lowest  bidder,  §  229. 

The  weight  of  authority  is  that  a  private  party  may  be  relator  as  to 
public  rights,  §  230. 


456  INDEX. 

RELATOR  (continued): 

The  writ  has  been  granted  to  a  private  relator  — 
to  call  an  election  for  public  offices,  §  230. 
to  compel  a  railroad  to  restore  a  highway,  §  230. 
to  compel  a  railway  to  run  its  trains  to  its  terminus,  §  230. 
to  compel  the  opening  and  working  of  a  public  road,  §  230. 
to  cause  the  assessment  of  property  for  taxes,  §  230. 
to  compel  the  maintenance  of  a  public  bridge,  §  230. 
to  compel  the  opening  and  closing  of  a  public  bridge,  §  230. 
to  compel  the  widening  of  a  street,  §  230. 

to  compel  the  issuance  of  a  warrant  for  the  collection  of  taxes, 
§  230. 
Public  officers  may  be  relators  even  against  their  co-officers.  §  231. 
All  parties  in  interest  may  be  joined  as  relators,  but  it  is  not  neces- 
sary, §  232. 
Parties  can  be  joined  as  relators,  when  have  a  common  right  and  are 

joint  sufferers,  §  232. 
Where  a  part  of  a  fund  was  decreed  to  each  of  four  parties,  they 
were  not  allowed  to  apply  jointly  for  a  mandamus  to  compel  its 
payment,  §  232. 
When  several  officers  are  turned  out  of  office,  they  cannot  join  in  a 
writ  to  be  restored,  §  232. 
in  one  case  they  were  allowed  to  join,  §  232. 
When  an  officer  is  the  relator,  his  successor  can  continue  the  pro- 
ceedings, §  233. 
Death  abates  the  writ  in  the  case  of  a  private  relator,  §  233. 

REMEDY : 

This  writ  issues  because  there  is  no  other  remedy,  §§  10,  209. 
To  bar  the  use  of  a  mandamus  — 

such  other  remedy  must  be  specific,  §  13. 

must  be  adequate  and  a  legal  remedy,  §  51. 
must  be  speedy,  §  52. 
Writ  not  granted  because  speedier  than  other  remedy,  §  52. 
Writ  granted  if  delay  attending  other  remedy  would  permit  mate- 
rial injury,  §§  52,  198. 
Other  remedy  is  adequate  if  it  compels  the  performance  of  the  neg- 
lected duty,  §  53. 
Such  remedy  must  be  against  the  proposed  respondents  and  not 

against  third  parties,  §§  53,  184. 
Writ  will  be  granted  when  law  intended  it  to  be  available,  though 

another  remedy  may  be  used,  §  52. 
Such  remedy  must  be  a  legal  remedy,  §  54. 
An  equitable  remedy  only  appeals  to  the  discretion  of  the  court  as 

to  the  propriety  of  issuing  this  writ,  §  55. 
An  obsolete  remedy  is  not  considered  to  be  a  bar,  §  54 


INDEX. 


45' 


EEMEDY  (continued) : 

If  it  is  doubtful  whether  there  is  an  adequate  remedy,  the  writ  issues. 

§53. 
A  writ  to  pay  a  claim  for  salary  has  been  refused,  because  suit  could 

be  brought,  §§111, 135.  136. 
If  the  law  has  specifically  provided  another  remedy,  the  writ  will  be 

refused,  §g  55,  116, 194 
A  mandamus  to  issue  a  certificate  of  election  will  not  be  granted. 

when  the  relator  is  contesting  the  election  by  suit,  §  153. 
A  court  will  not  be  compelled  by  this  writ  to  grant  an  appeal,  when 

the  appellate  court  can  grant  it,  §  209. 
A  court  will  not  be  compelled  to  approve  an  appeal  bond,  when  a 

judge  of  the  appellate  court  can  do  so,  §  209. 
Court  in  its  discretion  will  refuse  the  writ,  when  a  cause  is  pending 

in  another  court,  wherein  the  matter  may  be  settled,  §  82. 
But  such  suit  must  be  maintainable  and  must  finally  settle  the  mat- 
ter, §  84 
Ordinarily  the  writ  will  be  refused,  if  another  tribunal  can  direct  the 

act  to  be  done.  §  84 
Owing  to  the  absence  of  other  remedy,  the  writ  has  issued  — 

to  vacate  an  improper  order  to  produce  the  party's  books,  §  201. 
quashing  an  indictment  alleged  not  to  have  been  properly 
found,  §  201. 
to  set  aside  the  dismissal  of  an  appeal  from  a  nonsuit,  §  201. 
to  review  the  court's  order  to  a  justice  to  make  return  of  a  case 
appealed,  though  his  fees  have  not  been  paid,  §  201. 
Though  there  is  no  other  remedy,  a  mandamus  will  not  lie,  when  the 
law  intended  the  action  of  the  officer  to  be  final,  §  313. 

REMOVAL  OF  CAUSES: 

Writ  not  issued  by  state  court  to  inferior  state  court  to  transfer  a 

cause  to  a  federal  court,  §  220. 
A  federal  court  cannot  by  this  writ  compel  a  state  court  to  transfer 

a  cause  to  it,  §  220. 
After  an  order  of  transfer  of  a  cause  to  a  federal  court,  a  superior 
state  court  will  not  compel  the  subordinate  state  court  to  proceed 
and  try  the  cause,  §  220. 
If  a  transfer  has  been  denied,  mandamus  lies  to  such  state  court  to 

proceed  to  try  the  cause,  §  220. 
Writ  will  not  lie  to  a  federal  court  to  remand  a  cause  erroneously 
transferred  to  it,  §  220. 
In  such  case  remedy  is  by  appeal  from  judgment,  if  allowable: 
otherwise,  its  judgment  is  final,  §  220. 
After  a  federal  court  has  remanded  a  cause  to  a  state  court,  under 
the  statute  of  1887,  the  former  court  cannot  be  required  by  this 
writ  to  proceed  to  try  the  cause,  §  220. 
An  original  mandamus  proceeding  is  not  transferable  from  a  state 
to  a  federal  court,  §  220. 


458  INDEX. 

REMOVAL  FROM  OFFICE: 

When  a  public  corporation  can  remove  one  of  its  officers,  §  147. 

If  wrongfully  removed,  may  be  restored  by  mandamus,  §  148. 

Courts  will  pass  on  the  legality  of  the  removal,  §  147. 

Officer  must  have  opportunity  to  be  heard  before  removal,  §  147. 

Record  of  removal  should  show  the  proceedings,  §  147. 

When  authorized  parties  have  investigated  and  removed,  courts  will 

not  re-investigate  the  charges,  §  147. 
Suspension  from  office  equivalent  to  removal  from  office,  so  far  as 

the  use  of  this  writ  is  concerned,  §  148. 
When  quo  warranto  is  considered  to  be  the  proper  remed}-,  this  writ 

is  refused,  §  148. 
Courts  will  not  grant  this  writ  to  restore  an  officer  — 

when  the  office  is  held  at  the  pleasure  of  the  respondents,  §  149. 
when  the  relator  can  be  regularly  removed  for  the  same  causes, 

§149. 
when  party  not  ousted,  but  merely  intruded  upon,  §  150. 
The  writ  will  not  be  granted  to  compel  the  removal  of  an  officer 
from  his  office,  when  such  action  is  discretionary  with  respondent, 
§  151. 
See  Officers. 

REPLEVIN : 

Is  not  an  adequate  remedy  to  obtain  possession  of  public  books  or 

documents,  §§  103,  154. 

REPLY : 

Formerly  not  allowed  to  return,  §  4. 

Allowed  by  statute  of  9  Anne  in  some  cases,  §  5. 

Allowed  by  statute  of  1  William  IV.  in  all  cases,  §  5. 

New  allegations  of  return  may  be  always  traversed.  §  268. 

Traverse  to  return  should  be  single,  direct  and  positive,  §  288. 

Should  traverse  or  confess  and  avoid  facts  set  up  in  return,  §  288. 

Should  not  re-affirm  allegations  of  writ  not  answered  by  return, 

§288. 
If  return  merely  a  denial  of  allegations  of  writ,  no  reply  required, 

§288. 
Reply,  taking  issue  on  immaterial  questions,  is  bad  on  demurrer, 

§289. 
An  evasive  reply  may  be  treated  as  admitting  the  facts  charged, 

§288. 
Reply  and  subsequent  pleadings  subject  to  general  rules  of  pleading, 

$289. 
An  illustration,  §  322. 

RES  JUDICATA: 

A  judgment  in  mandamus  on  the  merits  is  a  bar  as  to  those  issues 
in  any  legal  proceeding,  until  reversed  or  set  aside,  §  315. 


index.  459 

RES  JUDICATA  (continued) : 

Such  judgment  is  not  a  bar  when  the  writ  was  quashed  — 

because  it  was  informal,  or  defective  by  omission  of  proper  par- 
ties or  allegations,  §  315. 
because  it  did  not  disclose  a  proper  case  for  the  writ,  §  315. 
When  the  court  had  jurisdiction  of  parties  and  subject-matter  its 

judgment  in  mandamus  cannot  be  attacked  collaterally,  §  315. 
A  judgment  in  mandamus  against  a  county  is  conclusive  "as  to  all 
matters  which  could,  have  been  set  up  therein  in  a  bill  in  equity 
subsequently  filed  against  it  by  other  inhabitants  of  the  county, 
§  315. 

When  to  obtain  power  to  levy  a  tax  to  pay  a  judgment  on  bonds 
the  court  must  go  behind  the  judgment,  it  cannot  decline  to  rec- 
ognize the  fact  that  the  bonds  are  void,  §  218. 

See  Judgments. 

RESPONDENT : 

Party  whose  duty  it  is  to  do  the  act  desired  must  be  the  respondent 

§234. 

Person  having  no  duty  in  the  premises  must  not  be  made  a  respond- 
ent, §  241. 

Only  those  charged  with  the  duty  can  be  joined  as  such,  §  234a. 
All  charged  with  the  duty  must  be  joined  as  such,  though  some 
willing  to  act,  §  234a. 
contrary  ruling,  §  235. 
May  be  joined  as  such,  if  duty  to  be  done  by  one  or  other,  §  234a. 
All  parties  concerned  in  separate  but  co-operative  steps  leading  to 
one  result  may,  but  are  not  required  to,  be  joined  as  respond- 
ents, §  235. 
contrary  rulings,  §  236. 
Cannot  be  joined  if  their  duties  are  distinct,  §  234a. 
If  an  improper  joinder  of  respondents,  writ  will  be  dismissed,  §  234a. 
Writ  not  lie  if  government  is  a  necessary  respondent,  §  89. 
Cannot  be  if  his  term  of  office  has  expired,  §  241. 

if  his  office  has  been  abolished,  §  241. 
May  be,  though  he  has  resigned,  if  resignation  does  not  vacate  office 
§239. 

Will  not  issue  to  a  court,  acting  under  a  special  commission  after 

its  expiration,  §  211. 
Respondent  is  proper  party  to  make  return  to  alternative  writ,  §  382. 
If  other  parties  make  the  return,  they  are  liable  to  an  attachment 

§282. 
Court  will  protect  respondent's  rights.  §  81. 
Court  will  not  involve  him  in  doubtful  litigation,  §  81. 
Will  not  be  compelled  to  be  a  trespasser,  §  81. 
Will  not  be  allowed  to  be  harassed  by  suits,  §  82. 
See  Abatement;  Contempt;  Corporations;  Officers. 


460  INDEX. 

RETURN  OF  OFFICER:  See  Sheriff. 

RETURN  TO  ALTERNATIVE  WRIT: 

Originally  not  allowed,  §  2. 

Corresponds  to  answer  in  ordinary  suit,  §  253. 

If  not  made  peremptory  writ  may  be  granted,  §  266. 

If  not  made  may  be  compelled  by  attachment,  §  266. 

May  be  of  obedience  to  the  writ,  §  267. 

In  such  case  should  follow  mandatory  clause  of  writ  and  clearly 

show  obedience,  §  267. 
Relator  may  traverse  such  return  as  not  true  or  a  mere  evasion, 

§  267. 
It  may  state  obedience  to  part  of  writ  and  reasons  for  not  obeying 

other  part,  §  267. 
May  deny  allegations  of  alternative  writ,  §  267. 
May  set  up  new  matter  constituting  a  defense,  £  267. 
May  be  informal,  but  must  contain  necessary  allegations,  §  273. 
Once  required  to  have  very  great  certainty,  §  274. 
Certainty  to  a  common  intent  is  now  sufficient,  §  274. 
Its  traverses  must  be  positive,  direct,  single  and  special,  §  274. 
A  general  denial  in  it  is  a  nullity.  §  274. 
Traverses  must  be  confined  to  statements  in  writ,  §  274. 
Return  is  sufficient  if  it  follows  suggestions  of  writ.  §  276. 
Cannot  deny  allegations  of  writ  on  information  and  belief,  §  280. 
Allegations  of  writ  which  it  does  not  notice  are  taken  as  true,  §  274. 
Should  show  a  legal  reason  for  not  obej-ing.  §  274. 
Must  be  very  minute  in  showing  reasons  for  disobedience  of  writ, 

§280. 
May  contain  several  defenses  if  consistent,  §  277. 
Is  bad  if  defenses  are  inconsistent,  unless  some  are  bad,  and  after 

they  have  been  quashed  the  remainder  are  consistent,  §  277. 
When  some  of  the  defenses  are  bad  in  law,  they  may  be  quashed, 

and  relator  required  to  plead  to  residue,  §  277. 
New  facts  must  be  set  out  positively  and  distinctly,  §  274. 
Allegations  of  must  be  positive,  and  not  on  information  and  belief, 

§280. 
Each  plea  must  have  certainty  as  to  time,  place  and  persons,  §  274. 
Construed  most  strongly  against  pleader,  §  274. 
Should  not  state  inferences,  £§  274,  280. 
Great  certainty  required  to  alternative  writ  to  restore  a  corporator, 

§275. 
Cannot  consist  of  a  bill  in  equity  asking  for  an  injunction  against 

the  prosecution  of  the  writ,  §  281. 
May  plead  in  bar  facts  occurring  after  issue  of  writ,  £  279. 
Facts  occurring  after  issue  joined  may  be  set  up  by  plea  puis  dar- 
rein continuance,  §  279. 
Need  not  be  verified  at  common  law,  £  283. 


INDEX.  4G1 

RETURN  TO  ALTERNATIVE  WRIT  (continued): 

Court  may  require  a  verification,  §  283. 

When  verification   required,  only  such   positiveness  of  allegation 
should  be  required  as  party  can  make,  §  280. 

Under  early  practice  its  allegations  of  fact  could  not  be  traversed, 
§  268. 

Then  the  remedy  was  by  action  for  a  false  return,  g  268. 

Reply  thereto  is  now  allowed,  §  268. 

May  be  amended  if  adjudged  defective,  §  287. 

If  evasive  or  frivolous,  may  be  disregarded  or  stricken  from  files, 
§  284. 

May  be  withdrawn  by  leave  of  court,  §  292. 

Title  of,  §  320. 

Signature  to,  §  320. 

Illustration  of.  §  322. 

See  Affidavit;   Amendment;   Attachment;   Corporator  (Pri- 
vate Corporation)  ;  False  Return  (Action  for)  ;  Respondent. 
RETURN  TO  PEREMPTORY  WRIT: 

Strictly  none  save  of  obedience,  §  297. 

Sufficient  if  act  is  done,  though  by  another,  §  297. 

Return,  that  corporator  is  restored,  is  sufficient,  though  he  was  noti- 
fied at  once  of  new  proceedings  to  remove  him,  §  299. 

Return,  that  statute  has  since  forbidden  the  act  or  made  obedience 
impossible,  is  sufficient,  §  297. 

Prior  to  a  return,  court  may  grant  rule  to  show  cause  why  the  per- 
emptory writ  should  not  be  quashed,  §  297. 

If  not  made,  court  may  issue  an  alias  peremptory  writ,  an  attach- 
ment, or  grant  order  to  show  cause  why  an  attachment  should 
not  issue,  g  298. 

See  Order  to  Show  Cause  why  an  Attachment  Should  Not 
Issue  for  Disobeying  a  Peremptory  Writ;  Order  to  Show 
Cause  why  the  Peremptory  Writ  Should  Not  Be  Quashed. 

RIGHT : 

Mandamus  only  lies  to  enforce  a  legal  right,  §  11. 

No  legal  right,  when  law  provides  no  remedy  for  its  violation,  g  11. 

Writ  never  granted  to  enforce  equitable  rights,  §  56. 

Title  must  not  be  inchoate,  §  56. 

The  right  must  be  already  established,  §  56. 

If  relator  shows  no  interest  in  the  matter,  the  writ  will  be  refused. 

§66. 
Writ  denied,  if  right  of  relator  not  clear,  though  respondent  willing 

to  act,  §§  56,  67. 
If  relator's  right  expires  before  hearing,  writ  refused,  77. 

ROADS:  See  Highways. 
RULE:  See  Order. 


462  INDEX. 

s. 

SALARIES : 

Mandamus  lies  to  municipal  officers  to  pay,  §  136. 

Some  courts  assert  a  suit  is  a  sufficient  remedy,  §§  17,  136. 
Party  having  commission  and  de  facto  officer  may  have  this  writ 

for,  §  105. 
Teacher  of  public  school  may  have  this  writ  for,  §  115. 
Writ  for,  lies  from  date  of  right,  though  inducted  into  office  later, 

§  153. 
When  salary  fixed  by  law,  claim  need  not  be  audited,  §  135. 
See  Prima  Facie  Title;  Warrant. 

SCHOOL  FUNDS: 

Writ  lies  to  obtain  payment  out  of,  when  payments  made  by  city 
treasurer  on  order  of  school  board,  §  19. 

SCHOOLS : 

Mandamus  lies  — 

to  restore  scholars  improperly  excluded,  §  115. 

to  admit  scholars  improperly  excluded,  §  115. 

to  restore  teacher  improperly  removed,  §  115. 

to  compel  payment  of  salaries  of  teachers,  §  115. 

to  provide  enough  schools,  §  1 15. 

to  allow  the  use  of  certain  text-books,  §  115. 

to  levy  a  tax  to  raise  the  amount  of   money  required  for  the 

schools,  §  129. 
to  introduce  into  the  schools  the  text-books  properly  adopted,  §  115. 
to  levy  a  tax  to  pay  for  building  a  school-house,  §  129. 
Mandamus  has  been  refused  — 

to  transfer  a  party  for  school  purposes  to  another  town,  because 

an  appeal  would  lie,  §  53. 
to  admit  a  colored  child  to  a  public  school,  because  the  father 

could  bring  suit,  §  53. 
to  contract  for  school  books,  when  other  books  had  been  ille- 
gally adopted  and  purchased  and  then  in  use,  §  66. 
Writ  not  granted  in  such  matters,  when  public  interests  will  suffer, 

§115. 
Colored  children  cannot  be  excluded  from  public  schools,  §  115. 
Query:  Can  separate  schools  be  provided  for  colored  children,  §  115. 
Because  of  discretion  allowed,  writ  not  issue  to  approve  of  a  school 

teacher,  §  115. 
In  discretionary  matters  writ  will  issue  to  come  to  some  conclusion, 

§115. 
Writ  will  be  refused  to  keep  school  open,  when  such  period  has 

passed,  77. 
A  father  can  assert  his  child's  rights  in  the  public  schools,  §  228. 


INDEX.  463 

SEALS : 

Writ  lies  to  corporate  officers  to  put  corporate  seal  to  official  certifi- 
cates, §  109. 

SECRETARY  OF  THE  INTERIOR: 

Writ  not  lie  to  issue  a  patent  for  public  lands,  §  100. 

unless  already  duly  signed,  sealed,  countersigned  and  recorded, 
§  101. 
SECRETARY  OF  STATE  (STATE): 

Writ  lies  to  compel  performance  of  a  ministerial  act,  §  102. 
Writ  has  been  issued  to  him  — 

to  allow  an  account  and  draw  his  warrant  therefor,  §  102. 

to  publish  acts  of  the  legislature,  §  102. 

to  furnish  a  copy  of  the  laws  for  publication,  §  102. 

to  attest  and  record  commissions  of  officers,  §  102. 

to  complete  election  returns  and  give  certificates  of  election, 

§102. 
to  revoke  the  licenses  of  foreign  insurance  companies,  §  102. 
to  issue  proper  notices  of  election,  §  102. 

SECRETARY  OF  STATE  (UNITED  STATES): 

Mandamus  refused  to  compel  him  to  pay  to  claimant  money  re- 
ceived from  a  foreign  government  in  payment  of  a  private  claim, 

§101. 

SECRETARY  OF  THE  TREASURY: 

Writ  refused  to  pay  relator  amount  allowed  by  another  departnu  nt. 
§100. 

SERVICE  OF  WRIT : 

Writ  to  be  served  on  the  mayor  or  highest  officer  of  a  municipal  cor- 
poration, §  237. 

Writ  to  be  served  on  highest  officer  of  a  private  corporation  or  the 
body  to  do  the  duty  desired,  §  237. 

Mode  of  service  of  writ  is  regulated  by  statute,  §  237. 

SHERIFF: 

As  ministerial  duties  this  writ  has  issued  to  him  — 

to  put  a  party  into  possession  of  property  according  to  decree, 

§123. 
to  make  his  return  accord  with  the  truth,  §  123. 
to  surrender  property  he  was  no  longer  entitled  to  hold,  §  123. 
to  appoint  appraisers,  §  123. 
to  set  out  a  debtor's  exemptions,  §  123. 
to  sell  an  estate  as  an  entirety,  §  123. 
to  make  a  deed  for  property  sold  by  him,  §  123. 
In  the  latter  case  the  writ  must  contain  averments  showing  the  sale 
to  have  been  according  to  law,  §  256. 


464 


INDEX. 


SHERIFF  (continued) : 

The  writ  has  been  refused  — 

when  there  was  a  doubt  as  to  his  duty,  §  123. 

to  make  a  deed  for  property  with  recitals  which  were  not  true, 

§123. 
to  execute  a  judgment  on  property  when  the  title  was  in  dis- 
pute, g  123. 
to  deliver  over  the  surplus  on  a  sale  for  taxes,  there  being  an- 
other remedy,  §  123. 
Writ  issues  to  court  to  allow  him  to  amend  his  return,  §  189. 
Writ  not  lie  to,  to  produce  prisoner,  when  has  already  delivered  him 
to  other  officers,  §  75. 

SOCIETIES : 

Mandamus  does  not  run  to  unincorporated  societies,  §  157. 
STATE : 

United  States  can  impose  no  duty  on  a  state  officer  and  compel  him 
to  perform  it,  §  219. 

See  Government. 

STATE  LAND  OFFICE  (COMMISSIONER): 

Mandamus  issues  to,  to  issue  patents  for  lands,  §  106. 
See  Executive  Officers. 

STATE  TREASURER: 

As  a  ministerial  duty  this  writ  lies  to  him  — 
to  issue  certificates  of  election,  §  103. 
to  issue  state  bonds,  §  103. 
to  stamp  state  bonds,  §  103. 

to  surrender  to  municipality  its  invalid  bonds,  §  103. 
to  pay  warrants  drawn  on  him,  provided  there  is  an  appropria- 
tion, §  103. 
Writ  refused  to  pay  warrant  so  soon  as  he  has  money,  §  103. 
Writ  not  lie  to  disobey  instructions  of  the  legislature,  §  103. 
His  decision  as  to  the  amount,  but  not  the  legality,  of  a  claim  is  con- 
clusive. §  103. 
See  Appropriations;  Executive  Officers;  Salaries. 

STATUTE  OF  9  ANNE : 

Generally  adopted  in  America,  §  7. 
STATUTES : 

Duty  imposed  by  statute  need  not  be  specifically  stated,  §§  13,  27. 

Party  may  put  himself  in  a  position  subjecting  him  to  such  dutv, 
§13. 

May  be  mandatory,  though  in  form  permissive,  §  34. 

Mandatory  when  public  rights  involved,  or  public  or  third  parties 
have  a  right  to  have  the  power  exercised,  §  34. 

Officer  cannot  act  so  as  to  defeat  a  mandatory  law,  §  35. 


INDEX.  465 

STATUTES  (continued) : 

A  sufficient  statutory  remedy  will  prevent  issue  of  a  mandamus, 

§51. 
A  public  body  will  not  be  compelled  to  violate  a  penal  statute,  §  60. 
United  States  can  impose  no  duty  on  a  state  officer  and  compel  him 

to  perform  it,  £  219. 

STOCK  (CORPORATION): 

Mandamus  to  transfer  generally  refused,  §  160. 
Allowed  under  special  laws,  §  160. 
Allowed  in  England,  §  160. 
Damages  for  refusal  to  transfer  not  always  held  an  adequate  remedv 
§160. 

STOCKHOLDERS :   See  Books  (Private  Corporations)  ;  Corpora- 
tions (Private);  Corporators. 

STREETS : 

When  discretion  allowed  about  improving,  mandamus  not  lie  to  re- 
view decision  not  to  improve,  §  110. 

When  right  given  to  occupy,  mandamus  lies  to  fulfill  duties  imposed. 
§27. 

Writ  not  lie  to  a  private  corporation  to  open  or  keep  in  repair  a 
street  according  to  contract,  §i$  16,  53. 

Mandamus  to  remove  obstructions  put  in  a  street  by  authority  of 
a  city  must  show  an  unlawful  use  of  the  street,  §  109. 

See  Bridges  (Public):  Highways;  Taxes  (Levy  of). 

SUBPCENA  DUCES  TECUM : 

Mandamus  refused  to  compel  court  to  punish  for  disobeying,  §  187. 

SUBSCRIPTIONS : 

Mandamus  issues  to  county  officers  to  subscribe  to  railroad  6tock  as 

authorized  by  vote,  §  111. 
But  law  must  impose  the  duty  to  subscribe  on  such  vote,  §  128. 
In  such  case  tax-payers,  but  not  the  railroad,  may  compel  the  sub- 
scription, §  228. 
When  subscription  once  made,  writ  lies  to  issue  the  bonds  therefor. 
§128. 
or  to  raise  the  money  therefor,  as  statute  may  provide,  §  128. 
A  municipal  subscription  may  impose  conditions,  though  the  law  is 

silent,  §  128. 
A-  proposition  by  a  railroad,  accepted  by  vote  of  a  municipality,  be- 
comes a  contract  if  the  law  so  provides,  and  this  writ  lies  to  com- 
pel the  issue  of  the  bonds  upon  tender  of  the  stock,  g  128. 
A  compliance  with  an  ordinance  by  a  railroad  authorizes  a  man- 
damus to  compel  the  city  to  issue  its  bonds,  if  the  law  makes  it  its 
duty  then  to  do  so,  §  128. 
30 


466  INDEX. 

SUBSCRIPTIONS  (continued) : 

Writ  not  lie  to  issue  bonds  to  a  railroad  already  completed,  if  the 

law  only  authorized  their  issue  to  assist  in  completing,  §  128. 
Writ  will  be  refused  to  compel  a  municipality  to  issue  its  bonds  to 
a  railroad,  if  bribery  was  used  to  control  the  vote  therefor,  §  68. 

SUCCESSORS : 

A  mandamus  begun  by  an  officer  may  be  continued  by  his  successor, 

§233. 
See  Relator  ;  Respondent. 

SUPERSEDEAS : 

In  England  a  peremptory  mandamus  is  not  suspended  by  appeal 

with  indemnifying  bond,  §  309. 
The  decisions  in  America  are  conflicting,  §  309. 
Mandamus  will  lie  to  carry  a  decree  into  effect,  when  a  supersedeas 
is  wrongfully  granted  on  an  insufficient  bond,  §  189. 
SUSPENSION  FROM  OFFICE :  See  Removal  from  Office. 

T. 

TAX  SALE: 

Mandamus  lies  to  a  treasurer  to  pay  to  purchaser  at  tax  sale  such 

money  as  he  received  on  the  redemption  of  the  land,  §  135. 
Writ  not  lie  to  make  a  tax  deed,  when  it  will  convey  no  title,  §  75. 

TAXES : 

Mandamus  lies  to  refund  taxes  paid  under  an  erroneous  assessment, 
§111. 
to  pay  taxes  on  the  stock  of  a  corporation  when  there  is  no 
other  remedy  by  which  to  obtain  them,  §  19. 
Writ  will  not  lie  to  tax  collector  for  not  collecting  taxes  illegally 
.  assessed,  §  83. 

to  place  taxes  levied  on  the  tax  list  when  they  exceed  the  rates 
allowed  by  law,  §  60. 
Being  a  judicial  act,  writ  will  not  lie  — 

to  correct  an  error  in  a  tax  duplicate,  §  31. 
to  a  court  to  increase  school  taxes,  §  187. 

to  a  court  to  direct  its  judgment  in  an  application  about  a  tax 
assessment,  §  187. 

TAXES  (LEVY  OF): 

Writ  not  lie  to  levy  a  tax  unless  the  claim  is  a  legal  charge,  §  130. 
Claim  must  be  so  established  that  it  cannot  be  controverted,  §  130. 
Proof  of  claim  should  be  equivalent  to  a  judgment  or  debt  of  record, 

§  130. 
Unadjusted  claims  must  be  first  audited,  §  130. 

.If  municipal  bonds  are  questioned  in  law  or  fact,  judgment  must 
first  be  obtained  on  them,  §  17. 


I  MM   V.  4(i 


'  i 


TAXES  (LEVY  OF)  (continued): 

When  liability  is  doubtful  a  judgment  must  be  first  obtained,  §  139. 
When  liability  ascertained  mandamus  issues  to  levy  tax  to  pay.  g  180l 
"Writ  lies  to  councy  officers  to  settle  a  claim  against  a  county  and  to 

levy  a  tax  to  pay  it,  £  111. 
Law  may  specifically  provide  for  levying  a  tax  to  pay  a  claim  with- 
out auditing  it  £  130. 
This  writ  will  issue  to  levy  a  tax  — 

to  pay  claims  allowed  by  county  commissioners,  §  130. 
to  pay  judgments,  §§  113,  129,  130. 

to  pay  the  expenses  of  constructing  public  buildings,  §  129. 
to  pay  the  expenses  of  constructing  a  public  harbor,  §  129. 
to  pay  for  building  a  school-house,  g  129. 
to  create  a  fund  to  pay  a  certain  indebtedness,  §  129. 
to  raise  the  amount  required  for  schools.  ^  129. 
to  pay  municipal  bonds  and  interest  on  them,  jj  129. 
to  pay  the  damages  assessed  for  opening  a  street,  §  129. 
to  pay  the  bounties  promised  to  soldiers,  §  129. 
"Writ  will  not  lie  unless  respondents  have  legal  power  to  levy  the 

tax,  §§  129,  130. 
Writ  will  not  lie  if  statute  requiring  the  levy  is  void,  §  129. 
"When  money  is  to  be  raised  as  in  other  cases,  a  tax  may  be  levied, 

§129. 
The  only  power  for  raising  money  is  by  taxation,  unless  othtrwM 

provided  by  law,  §  129. 
Power  to  create  a  debt,  incur  an  obligation  or  to  expend  large  sums 
of  money  implies  a  power  to  levy  a  tax,  unless  otherwise  pro- 
vided, §  129. 
The  writ  must  comply  with  the  law  as  to  manner  of  collecting  and 

amount  of  the  tax,  §  129. 
Limitation  of  power  to  levy  must  be  urged  in  the  original  suit  and 
not  in  mandamus  proceedings  to  levy  a  tax  to  pay  the  judgment) 
§218. 
Writ  lies  to  levy  tax  to  pay  a  claim  when  suit  cannot  be  brought  on 

it,  §  130. 
Federal  courts  can  compel  municipal  officers  to  levy  taxes  to  pay 

their  judgments,  §  218. 
State  officers  cannot  be  compelled  to  do  any  act  not  their  dutv  In- 
state law.  §§  60,  218. 
Federal  courts  must  use  state  officers  to  levy  and   collect  taxes, 

§218. 
The  collection  of  taxes  cannot  be  required  faster  than  provided  In- 
law, §  132, 
The  levy  must  be  specifically  made  for  the  claim  urged  and  sepa- 
rately, §  132. 
A  new  levy  may  be  ordered  without  waiting  for  payment  by  delin- 
quents, §  132. 


468  INDEX. 

TAXES  (LEVY  OF)  (continued) : 

Levies  may  be  ordered  for  successive  years,  §  132. 

A  demand  to  levy  a  tax  without  stating  amount  of  liability  is  insuf- 
ficient, §  257. 

Writ  will  be  refused  when  all  the  money  that  can  be  raised  is  re- 
quired for  the  ordinary  and  necessary  public  expenses,  §§  66,  132. 

Court  may  require  a  full  return  of  expenses  to  show  such  necessity, 
§  132. 

Court  will  confine  expenses   of  municipality  to  such  necessities, 

§  132. 
A  sufficient  return  to  such  writ  that  all  the  taxes  allowed  have  been 

levied,  §  218. 
Writ  will  be  refused  when  appeal  pending  and  the  collection  of  the 

judgment  is  not  endangered,  §  72. 
When  suit  to  recover  taxes  erroneously  paid  is  barred,  a  writ  to  levy 

a  tax  to  repay  money  so  paid  will  be  refused,  §  87. 
See  Courts  (Federal  Circuit)  ;  Judgments. 

TELEPHONES : 

Mandamus  lies  to  place  telephones  in  private  offices,  §  162. 
Writ  lies  to  treat  all  alike  in  the  use  of,  £§  25,  162. 

TERM  (OF  COURT) : 

Writ  lies  to  compel  the  holding  of  a  term  of  court,  §  189. 

TERM  (OF  OFFICE) : 

This  writ  will  not  issue  to  an  officer  whose  term  of  office  has  ex- 
pired, §§  185,  241. 
or  whose  office  has  been  abolished,  §  241. 
This  writ  will  not  issue  to  a  court  acting  under  a  special  commis- 
sion which  has  expired,  §  211. 
See  Bill  of  Exceptions;  Relator;  Respondent;  Time. 

TESTIMONY : 

Mandamus  not  issue  to  court  to  issue  order  for  taking  testimony  of  a 
prisoner,  §  187. 

THIRD  PARTIES: 

Court  will  protect  the  rights  of  third  parties,  §  83. 

Writ  will  be  refused  if  it  would  involve  them  in  difficulties  and  hard- 
ships, §  83. 

Writ  will  be  refused  if  it  might  embarrass  them  in  suits,  §  83. 

May  be  subsequently  introduced  into  mandamus  proceedings  if  nec- 
essary to  protect  their  rights,  §  242. 

To  be  allowed  to  intervene  in  mandamus  proceedings  must  show 
that  they  will  gain  or  lose  by  the  direct  operation  of  the  decision, 
§  242. 

They  cannot  intervene  and  ask  for  the  determination  of  other  ques- 
tions, §  242. 

If  question  doubtful  let  court  order  that  they  be  made  parties,  §  243. 


INDEX. 


4<?P 


THIRD  PARTIES  (continued): 

Not  allowed  to  intervene  to  protect  rights  which  cannot  be  properly 
litigated  in  such  proceedings,  §  244. 

Whether  government  has  impaired  the  obligation  of  its  contract 
with  the  relator  by  its  legislation  cannot  be  inquired  into  in  a  man- 
damus proceeding  against  its  officer,  to  which  it  is  not  a  part  v 
§  105. 

See  Lntervexor. 

TIME : 

Writ  may  issue,  though  time  for  doing  the  act  has  expired,  if  the 

law  is  only  directory,  §  79. 
If  the  time  limited  by  law  for  action  has  expired,  the  writ  will  be 

refused,  g§  79,  185. 
Writ  has  issued  after  time  limited,  when  respondent  alone  in  fault- 

§§  50,  79,  208. 
The  limitation  as  to  time  has  been  disregarded  and  the  writ  issued 

to  prevent  injustice,  §  "«9» 
If  time  limited  for  action  in  that  year  has  expired,  the  court  may 

extend  the  time  for  a  return  to  cover  the  period  for  action  in  the 

next  year,  §  227. 
If  party  neglects  to  use  the  proper  remedy  in  the  time  limited  by 

law,  he  cannot  have  a  mandamus  because  now  otherwise  without 

remedy,  g  201. 

TITLE : 

Mandamus  not  lie,  when  the  title  to  the  right  claimed  is  inchoate, 

§56. 

TITLE  TO  OFFICE: 

Most  of  the  courts  refuse  a  mandamus  to  try  the  title  to  an  office. 
§143. 
the  better  rule  seems  to  be  otherwise,  §  146. 
Courts,  which  refuse  by  this  writ  to  try  the  title  to  an  office,  refuse 

to  enforce  by  this  writ  the  collateral  rights  of  the  party  with  the 

prima  facie  title,  when  the  question  of  the  real  title  is  involved, 

§  153. 
The  writ  will  be  granted  to  try  the  title  to  an  office,  when  the  law 

has  provided  no  other  remedy,  §  143. 
When  title  to  offices  cannot  be  considered,  the  question  of  eligibility 

of  relator  cannot  be  raised.  £  153k 
The  title  has  been  determined  in  writs  to  enforce  collateral  rights  of 

officer,  when  no  other  party  was  interested  in  the  office,  and  also 

when  the  respondent's  lack  of  title  was  clear,  §§  153,  155. 
See  Officers;  Offices;  Removal  from  Office. 

TITLE  TO  PLEADINGS: 

The  affidavit  or  petition  for  a  mandamus  should  be  entitled  of  the 

court,  but  not  of  a  cause.  §  247. 
Suggestion  that  advisable  to  entitle  of  a  cause,  g  247. 


470  INDEX. 

TITLE  TO  PLEADINGS  (continued): 

Error  in  entitling  papers  must  be  taken  in  limine,  §  247. 

After  court  has  taken  any  action,  all  subsequent  papers  filed  must 

be  entitled  of  the  cause,  §  247. 
The  proceedings  are  generally  in  the  name  of  the  government,  §  264. 
The  party  instituting  the  proceedings  is  the  relator,  §  264. 
The  party  proceeded  against  is  the  respondent,  §  264. 
Title  to  petition  (form  of),  §  316. 
Title  to  return  (form  of),  §  320. 

TOWNS : 

Writ  of  mandamus  has  issued  to  county  officers  — 
to  divide  a  township,  §  111. 

to  issue  warrants  to  fill  vacancies  in  township  offices,  §  111. 
Writ  of  mandamus  has  issued  to  town  officers  — 

to  raise  by  taxation  money  to  build  a  school,  §  114. 

to  draw  a  warrant  for  the  damages  for  constructing  a  road, 

§  114. 
to  pay  the  damages  for  constructing  a  road,  §  116. 
to  issue  a  notice  for  the  election  of  their  successors,  §  114. 
to  make  a  proper  division  of  the  assets  and  liabilities  on  the  di- 
vision of  the  town,  §  114. 
to  appropriate  a  certain  proportion  of  the  taxes  for  schools,  §  115. 
The  writ  has  issued  to  the  town  clerk  to  amend  his  records,  §  114. 

TREASURER : 

Writ  not  he  to,  relative  to  money  not  recpuired  to  officially  account 

for,  §  23. 
Writ  will  issue  to  pay  warrants  drawn  on  him  if  he  has  funds,  §  115. 
See  Warrants. 

TREASURER  (COUNTY) : 

Writ  of  mandamus  will  issue  to  — 

to  pay  the  taxes  collected  to  the  officers  entitled  to  receive  them, 

§134. 
to  issue  a  warrant  for  the  collection  of  taxes,  §  135. 
to  assign  the  certificate  of  the  sale  of  land  for  taxes,  §  135. 
to  pay  to  creditor  money  collected  to  pay  his  judgment,  §  135. 
to  sell  lands  for  delinquent  taxes,  §  135. 
to  pay  money  appropriated  by  the  legislature  for  a  particulai 

purpose  to  the  p roper  party,  $5  135. 
to  pay  a  judgment  against  the  county,  when  the  county  board 
has  resolved  not  to  appeal,  §  135. 
The  writ  has  been  refused  — 

when  clear  that  the  supervisors  were  imposed  on,  §  56. 

when  doubtful  whether  the  applicant  was  entitled  to  receive  the 

monev.  =•  56. 
because  ;in  action  lay  on  his  bond,  £  53. 
See  Warrants. 


INDEX. 


471 


TREASURER  (TOWNSHIP): 

Mandamus  lies  to  pay  taxes  collected  to  the  proper  officers,  §  134 
Writ  lies  to  issue  warrant  of  distress  against  tax-collector  for  neglect 
to  collect  and  return  taxes,  §  135. 
See  Warrants. 
TREASURER  (UNITED  STATES) :  See  Secretary  of  the  Treasury. 

TRESPASS : 

A  mandamus  will  not  issue  to  officers  to  commit  a  trespass,  §  116. 
The  writ  will  not  issue,  when  it  may  subject  officers  to  an  action  of 
trespass,  §  116. 
See  Discretion  of  Court;  Justices. 

TRIAL: 

Is  in  mandamus  proceedings  similar  to  that  in  any  other  suit,  §  291. 
Relator  must  prove  allegations  of  writ  denied  in  the  return,  §291. 
Respondent  must  prove  matters  in  avoidance  in  return,  if  denied  by 

relator,  §  291. 
All  issues  must  be  disposed  of  before  the  peremptory  writ  will  issue, 

§295. 
Writ  will  issue  to  a  court  to  try  a  cause,  if  it  wrongfully  refuses, 

§203. 
Writ  will  not  issue  to  a  court  to  try  a  cause,  when  the  parties  have 
been  enjoined  from  proceeding  therein,  §  187. 
TRIAL  (NEW) :  See  New  Trial 

TRUSTS  (PUBLIC) : 

A  mandamus  lies  to  enforce,  §  21. 

u. 

UNITED  STATES: 

Can  impose  no  duty  on  a  state  officer  and  compel  him  to  perform  it, 

§219. 

Y. 

VENUE  (CHANGE  OF): 

Writ  not  lie  to  a  court  to  grant,  §§  187,  196,  199. 
contrary  decisions,  §  187,  n. 

Writ  not  lie  to  vacate  order  allowing,  §  201. 

Where  court  was  interested,  writ  issued  to  court  to  transfer  cause  to 
proper  tribunal,  §  189. 

Writ  not  he  to  compel  change  of  venue,  as  agreed  by  litigants,  when 
no  law  therefor,  §  210. 

Writ  allowed  in  Michigan  to  vacate  order  rescinding  order  of  re- 
moval of  cause,  §  199. 

See  Justices  of  the  Peace. 

VERDICT : 

Mandamus  has  been  granted  to  a  court  to  receive  and  enter  the  ver- 
dict of  a  jury,  §§  189,  199. 


472  INDEX. 

VERDICT  (continued): 

Writ  refused  to  make  a  court  set  aside  a  verdict,  §  187. 

Writ  issued  in  Michigan  to  a  court  to  set  aside  a  verdict  and  grant 

a  new  trial,  §  200. 
See  Judgment. 

VISITOR : 

His  duties  are  confined  to  the  private  laws  of  the  corporation,  §  175. 

Mandamus  will  not  issue  when  he  has  authority  and  has  acted,  §  313. 

His  judgment  after  a  hearing  is  final,  £§  32,  175. 

He  alone  has  power  to  pass  on  the  laws  of  the  corporation  and  to 
hear  appeals  from  the  acts  of  its  officers,  §  175. 

Writ  lies  to  compel  him  to  perform  his  duty,  §§  32,  175. 

Writ  lies  to  compel  corporate  officers  to  obey  the  laws  of  the  land, 
§175. 

Civil  corporations  have  the  government  as  their  visitor,  §  175. 

The  ordinary  is  the  visitor  of  a  spiritual  corporation,  §  175. 

Eleemosynary  corporations  have  the  founder  and  his  heirs  as  visit- 
ors, §  175. 

VOLUNTEERS : 

Writ  refused  to  enforce  contract  of  county  to  pay  for  volunteers, 
§16. 
contrary  decision,  §  129. 

VOTES:  See  Elections  (Canvassers). 

W. 

WAIVER: 

Suit  for  damages  waives  the  right  to  a  mandamus,  and  vice  versa, 

§311. 
Suit  for  damages  waives  the  right  to  be  restored  as  a  corporator  by 

this  Writ,  §  171. 

WARRANT : 

Writ  lies  to  auditing  officers  to  issue  their  warrants  on  the  disbursing 

officers  for  accounts  properly  allowed,  §§  115,  126. 
Officer  in  good  faith  doubting  the  right  of  the  relator  may  refuse  to 

issue  his  warrant  till  the  court  has  decided,  §  153. 
The  writ  will  not  be  granted  to  compel  an  officer  to  issue  his  war- 
rant t^ 
to  aid  in  obtaining  payment  of  a  private  contract,  §  16. 
when  it  is  doubtful  who  is  entitled  to  the  money,  §  56. 
until  board  having  authority  to  compel  the  issue  has  refused  to 

act,  §  84. 
when  the  appropriation  is  exhausted,  §  105. 
for  an  unliquidated  claim,  §  105. 

when  by  change  of  law  it  is  no  longer  his  duty,  §  105. 
for  salary,  which  has  been  already  paid  to  the  de  facto  officer, 
§153. 


INDEX. 


473 


WARRANT  (continued): 

Whether  there  must  be  money  on  hand,  or  the  writ  will  not  issue  is 
a  disputed  question,  g  105. 

The  holder  of  a  warrant,  not  its  drawer,  must  be  the  relator  in  pro- 
ceedings to  compel  its  payment,  §  228, 

The  alternative  writ  to  compel  the. payment  of  a  warrant  must  al- 
lege there  was  sufficient  money  to  pay  it  when  presented,  §  256. 

The  writ  lies  to  any  officer  whose  duty  it  is  to  issue  a  warrant  of 
any  nature,  gg  109,  111,  114. 

The  assignee  of  a  part  of  a  debt  cannot  compel  an  auditing  office i 
to  issue  him  a  warrant  for  his  interest,  §  111. 

See  Auditor;  Auditor  of  State ;  Comptroller  of  State :  Prima 
Facie  Title;  State  Treasurer 
WATER:  See  Irrigation. 

WILL : 

Mandamus  issues  to  grant  the  probate  of  a  will,  §  204. 
Writ  issues  to  grant  letters  testamentary  to  the  executor,  §  189. 
Writ  issues  to  call  a  register's  court  in  probating  a  will,  §  189. 
See  Records. 

WITNESS : 

In  Alabama  a  writ  of  mandamus  lies  to  review  the  action  of  a  court 
in  granting  or  setting  aside  an  attachment  for  a  witness,  §  199. 
WRIT  OF  ERROR:  See  Error  (Writ  of). 


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